[eDebate] Areas vs. list, let's look at just one listed case to overturn.

scottelliott at grandecom.net scottelliott
Mon Jun 5 16:45:43 CDT 2006


Note; I am mot knocking the Topic Committee. They really do work hard. However,
the way the system is set up, it is inevitable that the topic choices will suck
virtually every year. The focus on "inclusion" remains a deletarious factor in
the topic selection process and needs to be remedied.

Looking at the "Areas" versus, "lists," I believe the area topic to be better.
It
gives a clear direction for the decisionmaker and clear ground for the negative
to prepare a defense. The case-list approach can open itself to a wide variety
of unintended reasons to overturn a case. Botton-line, anytime a case is cited
in a lower court case for any precedential value on any issue, that lower court
case is a potential affirmative case. If I were coaching, i would have a debater
assigned to each case listed. Their assignment would be to search every morning
for any case citing that particualr S.C.t case. Whatever the case was talking
about we would be able to write a "mini-case" based on it. Each example cited
below is from a real lower level court case that is using some portion of
Bollinger as precedent---so, if a "test case" for cert is needed, the case is
already in da pipeline.

I randomly picked Bollinger for example. Up until 5 minutes ago, I did not know
what the case addressed. The case was AA for college admissions. But, notice
what "precedents" from Bollinger are being discussed at the lower appellate
court level (which, I would argue it where one finds precedents being applied
in the real world).

Example: Plan: USSCT overturns Gratz v. Bollinger (2003) because it was based on
the principle that the USSCT has the right to make precedent interpreting the
COnstitution (a la Marbury v. Madison). I don't even know what Bollinger is
about. but all I want to do is claim advatages from the Court having given
itself too much power to interpret the constitution.


Next aff Bollinger case.

"Justice Thomas, with whom Justice Scalia joins, dissenting.

The questions presented in this case require us to resolve two conflicting lines
of precedent. On the one hand, as the Court stresses, this Court has said that
"'all racial classifications reviewable under the Equal Protection Clause must
be strictly scrutinized.'" Gratz v. Bollinger, 539 U.S. 244, 270, 156 L. Ed. 2d
257, 123 S. Ct. 2411 (2003) (emphasis added) (quoting Adarand Constructors, Inc.
v. Pena, 515 U.S. 200, 224, 132 L. Ed. 2d 158, 115 S. Ct. 2097 (1995)). On the
other, this Court has no less categorically said that "the [relaxed] standard
of review we adopted in Turner [v. Safley, 482 U.S. 78, 96 L. Ed. 2d 64, 107 S.
Ct. 2254 (1987),] applies to all circumstances in which the needs of prison
administration implicate constitutional rights." Washington v. Harper, 494 U.S.
210, 224, 108 L. Ed. 2d 178, 110 S. Ct. 1028 (1990) (emphasis added).
Emphasizing the former line of cases, the majority resolves the conflict in
favor of strict scrutiny. I disagree. The Constitution has always demanded less
within the prison walls. Time and again, even when faced with constitutional
rights no less "fundamental" than the right to be free from state-sponsored
racial discrimination, we have deferred to the reasonable judgments of
officials experienced in running this Nation's prisons. There is good reason
for such deference in this case. California oversees roughly 160,000 inmates,
in prisons that have been a breeding ground for some of the most violent prison
gangs in America--all of them organized along racial lines. In that atmosphere,
California racially segregates a portion of its inmates, in a part of its
prisons, for brief periods of up to 60 days, until the State can arrange
permanent housing. The majority is concerned with sparing inmates the indignity
and stigma of racial discrimination. Ante, at ____ - ____, 160 L. Ed. 2d, at
959-960. California is concerned with their safety and saving their lives"

There ya go, folks, chew on that distinction for a while. I have a feeling that
the framer sof the resolution were not thinking about prison safety issues when
they decided to list Bollinger. So, now my plan overturns Bollinger on this
point tot he extent that I prevent prisoners from being gang raped in prison
and a prison riot/civil war scenario. Not quite Affirmative Action in college,
is it?

Or, this:

"In determining whether a race-conscious remedy is narrowly tailored, [*10]  we
look at factors such as the efficacy of alternative remedies, the flexibility
and duration of the race-conscious remedy, the relationship of the numerical
goals to the relevant labor market, and the impact of the remedy on third
parties." Sherbrooke Turf, Inc. v. Minn. Dept. of Transp., 345 F.3d 964, 971
(8th Cir. 2003) (citing United States v. Paradise, 480 U.S. 149, 171, 187, 107
S. Ct. 1053, 94 L. Ed. 2d 203 (1987) (plurality and concurring opinions)). In
examining these factors, we must ensure that the racial classifications are not
used any more broadly than the asserted compelling interest requires. Grutter,
539 U.S. at 342 ("Racial classifications, however compelling their goals, are
potentially so dangerous that they may be employed no more broadly than the
interest demands."); cf. Sherbrooke, 345 F.3d at 971 ("To be narrowly tailored,
a national program must be limited to those parts of the country where
race-based measures are demonstrably needed.") (emphasis removed). To ensure
narrow tailoring, we must conduct "a most searching examination" requiring "the
most exact connection between justification and classification. [*11]  " Gratz
v. Bollinger, 539 U.S. 244, 270, 123 S. Ct. 2411, 156 L. Ed. 2d 257 (2003);
Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 236, 115 S. Ct. 2097, 132 L.
Ed. 2d 158 (1995)."

or this:

Joseph argues that Congress abrogated the Board's immunity when passing ? 1983.
He cites three cases in support of his argument, none of which are convincing.
The first, Vlandis v. Kline, 412 U.S. 441, 93 S. Ct. 2230, 37 L. Ed. 2d 63
(1973), was a ? 1983 suit involving a public university. That case does not,
however, "definitively rule[] [**6]  that students have the right under ? 1983
to sue a state university," as Joseph claims. The plaintiffs in that case sued
the director of admissions as an individual, and therefore the Eleventh
Amendment was not implicated. Joseph misplaces his reliance on Gratz v.
Bollinger, 539 U.S. 244, 123 S. Ct. 2411, 156 L. Ed. 2d 257 (2003), as well.
The plaintiffs in that case sued under a law in which Congress has specifically
abrogated the states' Eleventh Amendment rights. Gratz, 539 U.S. at 259 n.10; 42
U.S.C. ? 2000d-7(a)(1). HN3The Supreme Court has expressly held that Congress
has not abrogated the states' immunity in ? 1983 suits. Quern v. Jordan, 440
U.S. 332, 341-45, 99 S. Ct. 1139, 59 L. Ed. 2d 358 (1979). Finally, Joseph
relies on Monell v. Dep't of Social Services, 436 U.S. 658, 98 S. Ct. 2018, 56
L. Ed. 2d 611 (1978), to support his position. The Court has been clear,
however, that Monell's holding applies only to municipalities  [*749]  and not
states or states' departments. Will, 491 U.S. at 70 ("We consequently limited
our holding in Monell to local government units which are not considered part
of the state for Eleventh [**7]  Amendment purposes." (internal quotation marks
omitted) (citing Monell, 436 U.S. at 690, n.54)).

So, now I get to argue a case advantage talking about state immunity to
lawsuits, then I get to run environmental impacts because states exempt
themselves from pollution legislation.

Another cas, citing Bollinger a precedent:

The district's desegregation plain focused on parental choice but included a
"tiebreaker" component that considered, among other things, a student's race
when determining which school the student was to attend. The parents alleged
that the tiebreaker component of the plan violated the Equal Protection Clause
and Title VI. The district court properly granted summary judgment for the
school district. The school district had compelling interests in the
educational and social benefits of racial diversity and in avoiding racially
concentrated or isolated schools. The district's plan was narrowly tailored to
achieve those interests. Although the plan included a numeric trigger, that
trigger constituted a permissible goal, rather than a quota. The use of race as
a tiebreaking criteria was necessary to achieve the district's compelling
interests, since the proposed alternatives would not achieve those interests.
The parents' conclusory arguments favoring another plan did not establish that
the alternative plan would achieve desegregation.


mmmm for you tax loving debaters, here is this little gem:

The remaining question is whether Plaintiffs' surviving cause [**46]  of action
-- namely, that the appropriation of state tax revenue to OHA violates the
Equal Protection Clause of the Fourteenth Amendment -- presents a
nonjusticiable political question. The district court reasoned that in order to
rule on Plaintiffs' equal protection claims, the court would have to determine
what level of scrutiny to apply. Compare Grutter v. Bollinger, 539 U.S. 306,
328-33, 156 L. Ed. 2d 304, 123 S. Ct. 2325 (2003) (applying strict scrutiny to
uphold race-conscious admissions policy at state university law school), and
Gratz v. Bollinger, 539 U.S. 244, 270-75, 156 L. Ed. 2d 257, 123 S. Ct. 2411
(2003) (striking down race-conscious undergraduate admissions policy at state
university under strict scrutiny), with Morton v. Mancari, 417 U.S. 535, 41 L.
Ed. 2d 290, 94 S. Ct. 2474 (1974) (applying rational basis, rather than strict
scrutiny, to employment preference that benefitted members of Indian tribe
because it furthered Indian self-government), and Alaska Chapter, Associated
Gen. Contractors of Am., Inc. v. Pierce, 694 F.2d 1162 (9th Cir. 1982)
(applying rational basis test to native Alaskans based on the federal
government's "special obligation"  [**47]  to Indians). The district court
reasoned that although Congress has plenary authority over Indian affairs, it
"has not yet clearly recognized Hawaiians as being equivalent to Indians or
Indian tribes for purposes of the [Mancari] analysis." Arakaki VI, 305 F. Supp.
2d at 1172. Noting that "Congress has begun to include Hawaiians as
beneficiaries in bills providing services to Native Americans" and had pending
before it the "Akaka Bill" that would "equate Hawaiians to Indians and/or
Indian tribes," the court observed that "Congress is still speaking on the
issue." Id. at 1173. The district court concluded that Congress "should make
the decision as to whether Hawaiians should be treated as Indians for purposes
of the [Mancari] analysis" and, "in recognition of the continuing debate," the
court would "defer[] to Congress." Id. at 1173, 1174. We hold that these claims
do not raise a nonjusticiable political question. We therefore reverse the
district court's dismissal on political question grounds, and remand.

So, the aff runs a plan to overturn Bollinger to the extent that strict scrutiny
would apply to taxation questions. Doesn't that make you, as a negative, want to
cringe?

My personal favorite is the King Kameameha school case:

("Invidious private discrimination may be characterized as a form of exercising
freedom of association protected by the First Amendment, but it has never been
accorded affirmative constitutional protections."); nor does it explicitly
argue for a relaxed level of scrutiny by appealing to the political nature of
classifications premised on membership in a federally recognized Indian tribe.
See Morton v. Mancari, 417 U.S. 535, 41 L. Ed. 2d 290, 94 S. Ct. 2474 (1974)
(upholding a Bureau of Indian Affairs hiring preference for Native Americans
under rational basis scrutiny due to the unique relationship between the
federal government and members of federally recognized Indian tribes). See also
Rice, 528 U.S. at 518 (declining to extend Mancari to uphold a race-based voting
restriction for native Hawaiians absent "some beginning premises not yet
established in [the Court's] case law"; namely, that Congress "has determined
that native Hawaiians  [*1030]  have a status [**10]  like that of Indians in
organized tribes"). We are, likewise, not presented with a challenge to the
racially discriminatory admissions policy of a public school or a school which
accepts federal funding. See, e.g., Gratz v. Bollinger, 539 U.S. 244, 275-76,
156 L. Ed. 2d 257, 123 S. Ct. 2411 & n.23, 539 U.S. 244, 156 L. Ed. 2d 257, 123
S. Ct. 2411 (2003) (applying strict scrutiny to a racial preference challenged
under the Equal Protection Clause); Grutter v. Bollinger, 539 U.S. 306, 343,
156 L. Ed. 2d 304, 123 S. Ct. 2325 (2003) (same).

Instead, we are confronted with a question of statutory origin: whether a
private school, receiving no federal funds, may legitimately restrict admission
to those of the native Hawaiian race. In other words, does the Kamehameha
Schools' "Hawaiians first" admissions policy constitute invidious
discrimination in violation of ? 1981? The district court concluded that it
does not. HN1Because the issue is one of law, we review that decision de novo.
See, e.g., Desir v. Ilchert, 840 F.2d 723, 726 (9th Cir. 1988) (stating that
"questions concerning the requirements of the applicable statutes . . . are
questions of law, which we review de novo") (internal quotation marks omitted).

III [**11]

Because the Kamehameha Schools admits that its admissions process is premised
upon an express racial classification, we must first identify the standard of
scrutiny that should be applied to proffered justifications for the racially
discriminatory program. Two obvious contenders exist: strict scrutiny, such as
that used to analyze challenges brought under the Fourteenth Amendment's Equal
Protection Clause; or the more deferential form of scrutiny employed to resolve
challenges brought pursuant to Title VII of the Civil Rights Act of 1964, 42
U.S.C. ? 2000(e) et seq. (2004).

Plan: USSSCT Overturn Bollinger to the extent that strict scrutiny would apply
to the King Kamememah schools. Advantage: Indingenous peoples, genocide, lots
of good stuff for the liberal/K crowd.

I wrote to soon, there is a nifty case out of the Montana District court's
applying Bollinger:

Second, we also agree with the district court that Schutz has standing to
challenge the Quota Statute. The district court based this decision on the
"equal-footing" doctrine set forth in Northeastern Fla. Chapter of Associated
Gen. Contractors of Am. v. City of Jacksonville, 508 U.S. 656, 666-67, 124 L.
Ed. 2d 586, 113 S. Ct. 2297 (1993). In that case, the Court held that the
inability of eligible bidders to compete for a governmental benefit--contract
set asides for racial minorities--is an injury in fact, even when the
petitioning party cannot demonstrate that they "would have obtained the benefit
but for the barrier." Id. at 666. HN8"The 'injury in fact' in an equal
protection case of this variety is the denial of equal treatment resulting from
the imposition of the barrier, not the ultimate inability to obtain the
benefit." Id.  [**11]  ; see also Gratz v. Bollinger, 539 U.S. 244, 261-62,
[*1134]  156 L. Ed. 2d 257, 123 S. Ct. 2411 (2003) (describing cases where
standing found even though plaintiff not denied a benefit). We have applied the
equal footing analysis in this circuit. See Cache Valley Elec. Co. v. Utah Dep't
of Transportation, 149 F.3d 1119, 1122 (10th Cir. 1998).

See, now I get to run a version of a 'save the salmon' case with environmental
impacts.



Now, here is the ultimate trump card for Aff's:

"All racial classifications, imposed by whatever federal, state, or local
governmental actor, must be analyzed by a reviewing court under strict
scrutiny. In other words, such classifications are constitutional only if they
are narrowly tailored measures that further compelling governmental interests."
Adarand Constructors, Inc. v. Pena ("Adarand III"), 515 U.S. 200, 227, 132 L.
Ed. 2d 158, 115 S. Ct. 2097 (1995). n6 "The burden of justifying different
treatment by ethnicity or sex is always on the government." Monterey Mech. Co.
v. Wilson, 125 F.3d 702, 713 (9th Cir. 1997); see also Johnson v. California,
160 L. Ed. 2d 949, 125 S. Ct. 1141, 1146 n.1 (2005) ("We put the burden on
state actors to demonstrate that their race-based policies are justified.");
Gratz v. Bollinger, 539 U.S. 244, 270, 156 L. Ed. 2d 257, 123 S. Ct. 2411
(2003) [**13]  ("To withstand our strict scrutiny analysis, [the University of
Michigan] must demonstrate that [its] use of race in its current admission
program employs narrowly tailored measures that further compelling governmental
interests." (internal quotation marks omitted)). In addressing Western States'
facial challenge, we must therefore determine whether the United States has met
its burden of demonstrating that the federal statute and regulations satisfy
strict scrutiny's exacting requirements. When considering the as-applied
challenge, we must decide whether the State of Washington has met this same
burden regarding  [*991]  its implementation of TEA-21's DBE program.

So I get to run the folllowing plan: USSCT overturns Bollinger to the extent
that it makes X program unconstitutional under strict scrutiny. X program is
good. e.g. A tribal dance group is good because it preserve native culture. An
Malcom X Black Muslim school for the blind  is good because it preserves
freedom of religion, preserve Black identity, and, oh yeah, helps blind kids.
Crzy bullshit, huh? Then see the following:

To resolve the equal protection issue, we turn to the Supreme Court's recent
decisions in Grutter v. Bollinger, 539 U.S. 306, 156 L. Ed. 2d 304, 123 S. Ct.
2325 (2003), and Gratz v. Bollinger, 539 U.S. 244, 156 L. Ed. 2d 257, 123 S.
Ct. 2411 (2003). We remain cognizant, however, that the factual backdrop for
our inquiry differs in two critical respects: first, the Lynn Plan operates at
the K-12 level, not at the university level; and second, the Lynn Plan
restricts voluntary transfers, not competitive [*5]  admissions. After careful
perscrutation of an amplitudinous record, we conclude that the Lynn School
Committee has made a persuasive case that racial diversity in K-12 education
may produce real educational benefits. Nevertheless, we conclude that the Lynn
Plan as currently conceived transgresses the Equal Protection Clause because it
is not narrowly tailored to meet the school system's asserted interest.

How about a straight up federalism debate:

Although it is true that Morales ultimately wants cancellation of removal, that
is not the relief she is seeking before this court--for good reason, as we have
no power to grant that relief. Instead, she seeks to have the Attorney General
consider her petition for cancellation of removal under the correct
interpretation of the eligibility requirements set forth in ? 1229b(b). That is
not the same as requesting review of the grant or denial of cancellation of
removal, any more than the request by certain Caucasian applicants to the
University of Michigan for a race-neutral admissions process necessarily
included a demand for a spot in the class. See Gratz v. Bollinger, 539 U.S.
244, 252, 156 L. Ed. 2d 257, 123 S. Ct. 2411 (2003)(relief requested included
damages, an injunction requiring reformation of the admissions process, and
only lastly an order requiring an opportunity to transfer to the University).
Morales's petition only indirectly concerns the ultimate grant or denial of
cancellation of removal; its focus is on the meaning of the statutory criteria
that cabin the Attorney [**7]  General's decisionmaking. In that respect, it is
much like Yang, where the only issue was whether the petitioner had committed
the kind of crime that led to removal.


How about another environmental or work place discrimination case:


Currently, the Supreme Court applies the "injury in fact" test to standing
inquiries. See, e.g., Gratz v. Bollinger, 123 S. Ct. 2411; 156 L. Ed. 2d 257,
No. 02-5 16, 2003 WL 21434002 (S. Ct. June 23, 2003). HN2Under this test,
plaintiffs must demonstrate a "concrete" harm that is [**19]  "actual or
imminent" and "fairly traceable" to defendant's conduct. Vermont Agency of
Natural Resources v. United States, ex rel. Stevens, 529 U.S. 765, 771, 146 L.
Ed. 2d 836, 120 S. Ct. 1858 (2000). In addition, plaintiffs must show that the
harm is likely to  [*969]  subside if they receive the relief they request. Id.



We found in Donahue I that Donahue was denied the opportunity to compete on
equal footing in the BPD's hiring process on account of his race in connection
with the 1999 exam. Id. at 120. However, unequal treatment is not itself
sufficient to establish standing to seek prospective relief; Donahue must also
be able to demonstrate that he is "able and ready" to apply for a position with
the BPD and is prevented from doing so by the challenged discriminatory policy,
that is, the operation of the consent decree. Id. at 119 (quoting Jacksonville,
508 U.S. at 666); see also Gratz v. Bollinger, 539 U.S. 244, 284, 156 L. Ed. 2d
257, 123 S. Ct. 2411 (2003) ("To seek forward-looking, injunctive relief,
petitioners must show that they face an imminent threat of future injury.");
O'Shea v. Littleton, 414 U.S. 488, 495-96, 38 L. Ed. 2d 674, 94 S. Ct. 669
(1974) [**16]  ("Past exposure to illegal conduct does not in itself show a
present case or controversy regarding injunctive relief . . . if unaccompanied
by any continuing, present adverse effects."). Because of ? 58A's age
limitation, Donahue was not able and ready to apply for appointment to the BPD
in December 2001 when the district court issued its original opinion in this
case, nor is he eligible for such an appointment today. Thus, Donahue does not
satisfy a key element of standing to seek prospective relief. n4

additionally,

A plaintiff must establish standing with respect to each kind of relief sought.
Even though a plaintiff may possess standing to seek damages, he does not
necessarily have standing to seek injunctive relief. See Friends of the Earth,
Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 120 S. Ct.
693, 145 L. Ed. 2d 610 (2000). "[A] plaintiff must demonstrate standing
separately for each form of relief sought. See, e.g., Lyons, 461 U.S. at 109,
103 S. Ct. 1660, 75 L. Ed. 2d 675 (notwithstanding the fact that plaintiff had
standing to pursue damages, he lacked standing to pursue injunctive relief);
see also Lewis v. Casey, 518 U.S. 343, 358, n. 6, 116 S. Ct. 2174, 135 L. Ed.
2d 606 (1996) ("Standing is not dispensed in gross.")." See also Gratz v.
Bollinger, 539 U.S. 244, 123 S. Ct. 2411, 156 L. Ed. 2d 257 (2003) ("However,
like the plaintiff in Los Angeles v. Lyons, 461 U.S. 95, 103 S. Ct. 1660, 75 L.
Ed. 2d 675 (1983), who had standing to recover damages caused by 'chokeholds'
administered by the police in the past but had no standing to seek injunctive
relief preventing future chokeholds, petitioners' past injuries do not give
them standing to obtain injunctive relief to protect third parties from similar
harms.").


Thie first case is, obviously, employment and hiring practices. The second case
is police brutality. third, According to the above quoted case, Bollinger
stands for the proposition that an injunction
must demonstrate imminent threat of future injury. the problem with that
standard, in environmental cases, is that by the time a threat becomes
"imminent," it is too late to prevent injury. Now, insert long term
environmental problem X here, and off to the races you go. I hazard to guess
the avaerage team witha Bollinger file on AA in colleges will have little to
say about a trout stream in Montana being damned up, or a globalw arming debate
because protesters against coal fired plants can't demonstrate "imminent" harm
in order to get a court injunction.



Any case involving government contracts is now fair game for the Aff.:

This equal rights provision was "meant, by its broad terms, to proscribe
discrimination in [among other things] the making or enforcement of contracts
against, or in favor of, any race." Gratz v. Bollinger, 539 U.S. 244, 276, 123
S. Ct. 2411, 156 L. Ed. 2d 257 (2003) [*14]  (citing McDonald v. Santa Fe Trail
Transp. Co., 427 U.S. 273, 295-96, 96 S. Ct. 2574, 49 L. Ed. 2d 493 (1976)).


These conflicting characterizations draw on a distinction established in Supreme
Court Equal Protection case law between claims alleging a racial barrier to
competition for a benefit, and those alleging failure to obtain the benefit
itself. For example, in Northeastern Florida, the Supreme Court held that a
plaintiff had standing to challenge a city government's minority business
set-aside contracting policy, even if the plaintiff could not establish that it
would have received the contract absent the policy:


HN11When the government erects a barrier that makes it more difficult for
members of one group to obtain a benefit than it is for members of another
group, a member of the former group seeking to challenge the barrier need not
allege that he would have obtained the benefit but for the barrier in order to
establish standing. The 'injury in fact' in an equal protection case of this
variety is the denial of equal treatment resulting from the imposition of the
barrier, not the ultimate inability [*14]  to obtain the benefit.



Northeastern Florida, 508 U.S. at 666. Thus, to establish standing to challenge
the set-aside program, the plaintiff contractors' association only needed to
"demonstrate that it is able and ready to bid on contracts and that a
discriminatory policy prevents it from doing so on an equal basis." Id. n2 In
Gratz v. Bollinger, 539 U.S. 244, 262, 123 S. Ct. 2411, 156 L. Ed. 2d 257
(2003), a rejected white applicant for an undergraduate slot at the University
of Michigan had standing because he "alleged that the University had denied him
the opportunity to compete for admission on an equal basis" and "that he was
'able and ready' to apply as a transfer student should the University cease to
use race in undergraduate admissions." Thus the plaintiff's alleged injury was
not too speculative because he stood ready to reapply if his application would
be considered on an equal basis with others. Id. While the plaintiff did allege
that a minority student with his qualifications would have been admitted, he was
not required to allege that he himself would have been admitted; he was merely
required to allege that he desired to compete for membership [*15]  in the
class. Id.



Incidentially, this would be a cool case regarding multi-racial students:

The denial of Tharp's transfer request because Cordell is multi-racial, and
because his transfer would upset the racial balance at Welch, implicates
Cordell's constitutional right to equal protection. It is well established that
HN4all racial classifications made by the government are subject to strict
scrutiny under the Equal Protection clause. See Gratz v. Bollinger, 539 U.S.
244, 270, 123 S. Ct. 2411, 156 L. Ed. 2d 257 (2003). HN5To withstand strict
scrutiny, the Board's consideration of a student's [*10]  race in its transfer
policy must be narrowly tailored to further a compelling government interest.
Id.

Also of note, one could strike down Gratz v. Bollinger, while affirming or
keeping its sister case, Grutter:

In Gratz v. Bollinger, 539 U.S. 244, 156 L. Ed. 2d 257, 123 S. Ct. 2411 (2003),
the Court acknowledged that diversity in the student body of an educational
institution can constitute a compelling state interest, but concluded that the
automatic allowance [*14]  of a 20-point bonus (one-fifth of the total points
needed to guarantee admission) to each "underrepresented minority" candidate
solely because of ethnicity was not narrowly tailored to ensure diversity.
Thus, this policy for undergraduate admissions at the University of Michigan
was struck down.

In Grutter v. Bollinger, 539 U.S. 306, 156 L. Ed. 2d 304, 123 S. Ct. 2325
(2003), decided on the same day as Gratz, the Court upheld against a similar
attack the admissions policy of the University of Michigan Law School. The
Court, speaking through Justice O'Connor (also the author of Adarand) stated,
"today we endorse Justice Powell's view that student body diversity is a
compelling state interest that can justify the use of race in university
admissions." (Id. at 325). Turning to the record before it, the Supreme Court
stated the following in concluding that the Law School had a compelling
interest in the generation of a diverse student body.

Notice how this would allow the Aff. to escape a s---load of negative strats
based on the broad concepts of Gratz, because Grutter will still be the law of
the land on those points, but can still claim advantages at the margins of
Gratz. LOL. That's going to put the negative in a hell of a fix. it would be
amusing to see the 1NC"s case strat blow up in their faces when they find out
that nothing is really done by overturning Gratz b/c of Grutter--except, of
course, the little case advantage. In fact, this
may be an indepedent reason for many to NOT vote for Bollinger as a topic. Did
the TC miss this issue of fact when they were deliberating?

Alternatively, for all of you negatives, just run overturn Grutter v. Bollinger
as a c-plan. Don't know why it is mutually exclusive, but that's for you to
figure out.


New case: Class action litigation:

In a putative class action each named plaintiff must allege an injury in fact.
See Gratz v. Bollinger, 539 U.S. 244, 289, 156 L. Ed. 2d 257, 123 S. Ct. 2411
(2003) (the fact that a "suit may be a class action...adds nothing to the
question of standing, for even named plaintiffs who represent a class 'must
allege and show that they personally have been injured, not that the injury has
been suffered by other, unidentified members of the class to which they belong
and purport to represent, '")(citations omitted); Payton v. County of Kane, 308
F.3d 673, 682 (7th Cir. 2002) ("Standing cannot be acquired through the back
door of a class action.") (citing Allee v. Medrano, 416 U.S. 802, 828-29, 40 L.
Ed. 2d 566, 94 S. Ct. 2191 (1974) (Burger, C.J., dissenting)).


Standing to sue would be another case. I suggest, for the perfromance people, a
rendition of the LORAX--because We speak for the trees. However, Bollinger may
affect our standing:

The parties do not dispute that plaintiffs have standing to sue in federal court
under the FDCPA. Defendants, however, contend that plaintiffs have not asserted
sufficient injury to have standing to bring their claims under the UCL as a
private attorney general on behalf of the public in federal court because
federal standing requires a plaintiff to assert their own interests. See Valley
Forge Christian College v. Americans United for Separation of Church and State,
Inc., 454 U.S. 464, 472, 70 L. Ed. 2d 700, 102 S. Ct. 752 (1982) HN19("At an
irreducible minimum, Art. III requires the party who invokes the court's
authority to show that he personally has suffered some actual or threatened
injury as a result of the putatively illegal conduct of the defendant'. . .
."); see also, Gratz v. Bollinger, 539 U.S. 244, 289, 156 L. Ed. 2d 257, 123 S.
Ct. 2411 (2003) (Stevens, J., dissenting) ("To have standing, it is elementary
that the petitioners' own interests must be implicated.  [**46]  "). To resolve
the standing issue, the court must carefully examine the relief the plaintiffs
request under the UCL.



If you thought you would escape War on Terror by debating Bollinger, guess
again:

Inherently suspect classifications are those drawn upon factors such as race,
religion, or alienage. See New Orleans v. Dukes, 427 U.S. 297, 303, 49 L. Ed.
2d 511, 96 S. Ct. 2513 (1976). Such classifications must be reviewed under a
strict scrutiny analysis, and may not be upheld unless they are narrowly
tailored to achieve a compelling governmental interest. See, e.g., Gratz v.
Bollinger, 539 U.S. 244, 270, 156 L. Ed. 2d 257, 123 S. Ct. 2411 (2003).

Looks to me that I can run racial profling on the aff., using Bollinger as the
case to overturn.

That is only a few of the cases that I found that really don't deal with the key
issue the framers of the resolution intendeds--AA in college admissions. Yet,
these are all potentially viable and topical affirmative cases. The flaw in
this list topics is that, other than overruling a decsion, there really is no
direction of action specified, no real topic area specified. On the other hand,
the "area" topic provides a real direction of action. Everybody knows where you
have to go--you have to have a plan that curtails 1st Amendment protection. If
the negative does not have, solid, predictable ground on that topic, then they
will never be able to have predictable ground. On this resolution, I give the
TC two thumbs up.

Interestingly, pornography cases can fall under hate speech or obscenity. So, my
guess is that this will be a big area--at least for novices and JV debaters.
Givent he work of Andrea Dworkin and K.A. McKinnon on this subject, I can
envision a lot of affirmative cases that would also capture a lot of K ground.
I do wonder what the "performance" affirmatives will look like. Get ready for a
lot of visual aids that would make even the staunchest 1st Amendment advocate
vomit in digust. It will also be interesting when people run Dworkin/McKinnon's
"porn='s hate speech" cards and run a "hate speech" plan, only to have the
negative counter-plan will be defining porn as obscenity rather than hate
speech.

Campaign-finance, obviously is going to be Feingold-McCain. The not so obvious
cases are going to be interesting. Especially PAC's that practice hate speech.
If youw ant to have real "poliitcs" links, this will be the debate topic for
you.

Hate-Speech. I can see a little holocaust denial case popping up.

Just a few cases i came up with.











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