35 Hastings Const. L.Q. [i] (2007-2008)

handle is hein.journals/hascq35 and id is 1 raw text is: HASTINGS CONSTITUTIONAL LAW QUARTERLY
VOLUME 35          FALL 2007          NUMBER 1

Table of Contents
ARTICLES
PICS IN Focus: A MAJORITY OF THE SUPREME COURT REAFFIRMS THE
CONSTITUTIONALITY OF RACE-CONSCIOUS SCHOOL INTEGRATION STRATEGIES
by  M ichael J.  K aufm an  ....................................................................................................... 1
In Parents Involved in Community Schools (PICS) v. Seattle School Dist. No. 1,
a majority of the Supreme Court reaffirmed the constitutionality of a school district's use
of race-conscious strategies designed to achieve the compelling benefits of a racially
diverse student body. The Court's decision turned on the question of whether the Equal
Protection Clause bars a public school district from considering the race of children of the
majority group as part of its effort to foster a racially integrated school. The answer not
only hinges upon an understanding of the Supreme Court's interpretations of the Equal
Protection Clause in Brown v. Board of Education and its progeny; it also hinges upon
the very nature of the principle of equality itself.
A majority of the Court in PICS actually rejects a view of the Equal Protection
Clause that would treat the African-American student in Brown and the white student in
PICS as like cases. Indeed, a careful analysis of the opinions in PICS reveals that a
majority of the Supreme Court has rejected any view of the Equal Protection Clause and
of the principle of equality that is color-blind. Instead, a majority of the Court
seriously questions whether governmental actions that recognize and remediate real racial
differences in educational opportunities should be subjected to strict scrutiny.
Ultimately, the majority seems to have recognized the authentic principle of
equality within the Equal Protection Clause. In many cases, African-American children
in fact are not like white school children in their educational opportunities. A school
district's program that recognizes those differences and treats African-American
schoolchildren differently from white school children in order to achieve the goal of
ultimately eradicating those differences is true to the principle of equality.
MARBURY IN MEXICO: JUDICIAL REVIEW'S PRECOCIOUS SOUTHERN MIGRATION
by   M C . M irow   .................................................................................................................. 4 1
Scholars agree that the United States Supreme Court did not discover the
general judicial review aspects of Marbury v. Madison (1803) until nearly a century later
in 1895. This article reveals that the Mexican Supreme Court, relying heavily on U.S.
constitutional sources and actually quoting Marbury, discovered this aspect of the case
more than a dozen years earlier than the United States Supreme Court.
In attempting to construct United States-style judicial review for the Mexican
Supreme Court in the 1880s, Ignacio Vallarta, president of the court, read Marbury in a
way that preceded this use of the case in the United States. Using this surprising fact as a
central example, this article makes several important contributions to the field of

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