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

Josh Hoe jbhdb8
Mon Jun 5 19:46:53 CDT 2006

Doctor Warner schooling on using the CP out of Extra T advantages.....Its a
happy day in mudville....We agree on segregation inclusion....Dr. Warner is
talking about CPs....Detente is breaking out all over.

Now if Jack and I could just make peace :) (I did keep my promise not to
argue with you about narrow vs braod topics no?).


On 6/5/06, Ede Warner <ewarner at louisville.edu> wrote:
>  More examples.  It's tough when people ignore your arguments.  But here
> goes.  I'll keep it simple:  run prison safety runs as an affirmative
> advantage for overruling Gratz.  Two things are true:  1) you still have to
> defend affirmative action if you topically overrule Gratz, there is no way
> around it.  That's what we call predictable negative ground; 2) This means
> Scott's example:  "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?
> Ede's response:  Scott doesn't cite the case the above quote is from.
> Let's say Prisoners of America vs. ATF.  You can counterplan out the prison
> discussion by overruling THIS CASE (Prisoners of America).  Then because the
> aff still has to defend Gratz and what their overrule means for affirmative
> action, then you have that ground to debate the aff.  The prisons advantage
> is no longer relevant and the aff must debate the core issues of the case.
> Now perhaps the tricky aff says the standard they overrule won't affect
> Affirmative Action.  Then you run overrule the decision topicality.  You
> argue that any topicality interpretation that doesn't explode the topic
> requires the aff to OR the major outcome of the case in question.  For Gratz
> it was affirmative action in education.  Even if Gratz is bi-directional,
> you should be able to argue that fair ground means that need to change the
> outcome of the decision and not the process.
> I'm working on my topicality arguments but overrule is clearly used in the
> context of outcomes and not process.  In other words, if I change a standard
> in how Gratz gets evaluated but still decide it doesn't justify an increase
> in affirmative action protection, I've got an argument.  Would it have been
> better with qualifiers in the topic to that effect?  Probably.  Is this
> argument winnable with the most generic definitions of overrule and
> decision?  I think so because any other interpretation explodes the topic.
> But who knows.  I won't make another post without some evidence, and frankly
> I've made my point as well as I could.  Folks either agree or disagree and
> that's okay.
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