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Harlan Institute » Lesson Plan – Fisher v. University of Texas (2015)
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Lesson Plan – Fisher v. University of Texas (2015)

Abigail Fisher v. University of Texas at Austin

Certiorari granted by the United States Supreme Court on June 29, 2015
Oral arguments TBD




The Parties

Petitioner: Abigail Fisher


Respondent: University of Texas, Austin

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The Questions Presented

  • Is race conscious affirmative action consistent with Fourteenth Amendment to the United States Constitution?
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Case Background

Abigail Fisher at the Supreme Court in 2013

Abigail Fisher, a white high school student from Sugar Land, Texas, applied to the University of Texas at Austin during her senior year and her application was rejected. Based on a statewide admissions program, the top 10 percent of students at each high school are automatically admitted to state universities. Students who are not within the top 10 percent may also apply to state schools, but for these students, including Fisher, admissions counselors consider various factors, such as the applicant’s race.  In 2003, the Supreme Court upheld a similar policy by the University of Michigan's Law School in the case of Grutter v. Bollinger. The Court found that the public university could take race into account an applicant’s racial background in admissions, as long as it was only one factor among many.
Fisher contends that, because preference was given to minority candidates, she was denied admission to the school on the basis of her race. She sued the school under the Equal Protection Clause, which reads: “No state shall . . . deny to any person within its jurisdiction the equal protection of the laws,” claiming that the Constitution forbids such discriminatory treatment.
The U.S. District Court for the Western District of Texas heard the case, and upheld the university’s admissions program. Fisher appealed this judgment.
The subsequent appeal was heard by the Fifth Circuit Court of Appeals. The Fifth Circuit agreed with the lower court and upheld the University of Texas admissions policy as well. Judge Patrick Higginbotham, writing for the Court, compared the program at Texas with a similar admissions program that the Supreme Court had found constitutional in the case Grutter v. Bollinger. The Court held that the Texas program, although it factored in the applicant’s race, did not violate the Equal Protection Clause because it was “narrowly tailored” to meet the school’s “compelling interest” to promote diversity on campus.
Fisher appealed the Fifth Circuit’s judgment to the United States Supreme Court. In 2013, the Supreme Court reversed the lower court’s ruling, holding that the Fifth Circuit and the district court was too deferential to the University of Texas's race-conscious admission policy. The Justices sent the case back to the Fifth Circuit, with instructions to give a more exacting scrutiny to the college's efforts to achieve a diverse student body. Purporting to apply the more exacting standard, the Fifth Circuit Court of appeals once again found that UT Austin’s race conscious admissions program was constitutional.
Abigail Fisher once again appealed the Fifth Circuit’s decision to the United States Supreme Court. On June 29, 2015, the Supreme Court agreed to hear the appeal for a second time. The Court will hear the case during the term that begins on October 5, 2015.
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The Law

Regents of the University of California v. Bakke, 438 U.S. 265 (1978)

In Bakke, the Supreme Court addressed affirmative action in university admissions for the first time. The 5-4 majority held that U.C. Davis Medical School violated the Equal Protection Clause of the Constitution by creating an application process where 16 out of 100 spots for incoming students were reserved for minority candidates. The Court specified that, while such a “quota system” is unconstitutional, the school may use the applicant’s race as a consideration on other ways because the school has a compelling interest in encouraging diversity in its student body. The opinion was very fractured, and there was no clear majority position.

Grutter v. Bollinger, 539 U.S. 306 (2003)

In a 5-4 vote, the Supreme Court upheld a University of Michigan Law School admissions program that put “substantial weight” on a applicant’s race in order to ensure diversity on campus. The Court evaluated the constitutionality of such a program under the Equal Protection Clause, using their ruling against the quota system in Bakke as a constitutional yardstick. Writing for the majority, Justice Sandra Day O’Connor wrote that the Constitution “does not prohibit the law school’s narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body.” Because the Michigan admissions program had the goal of attaining a “critical mass” of racially diverse students on campus, it was distinguishable from the illegal hard-line quota in Bakke. Notably, Justice O’Connor also mentioned that, while diversity on campus is an important aim, this kind of affirmative action program should have a time limit; she predicted that “25 years [after this case], the use of racial preferences will no longer be necessary to further the interest approved today.”

Parents Involved in Community Schools v. Seattle School Dist. No. 1, 551 U.S. 701 (2007)

In this case, the Court considered affirmative action in the high school setting. In Seattle, students within a district could apply to the high school of their choice. The most popular school choices become oversubscribed, so school administrators had to decide which students will receive their top choice. One of the most important factors in their decision was the student’s race, and often, the assignments would be done in such a way that would ensure racial diversity at each school. Chief Justice Roberts, writing for the five justice majority, invalidated the program. He held that it violated the Equal Protection Clause, and distinguished it from Grutter v. Bollinger because the program’s only goal was to ensure racial diversity instead of more holistic “diversity in higher education.” However, Justice Kennedy concurred, noting that diversity could still be considered in admission decisions.

Ricci v. DeStefano, 129 S. Ct. 2658 (2009)

Twenty firefighters sued the New Haven Fire Department, alleging that they were passed over for promotions solely on the basis of their race. The firefighters involved in the case, 19 white and 1 hispanic, outperformed minority candidates on a test to determine which employees would be promoted. As a result, the test results were discarded and no promotions were awarded. The Supreme Court held that this action by the fire department violated Title VII of the Civil Rights Act of 1964. The five justice majority opinion was authored by Justice Kennedy, who wrote that Title VII and the Court’s decision ensures “that the workplace be an environment free of discrimination, where race is not a barrier to opportunity.”

Fisher v. University of Texas at Austin I, 133 S. Ct. 2411 (2013)

Because the Fifth Circuit did not hold the University to the demanding burden of strict scrutiny articulated in Grutter and Regents of Univ. of Cal. v. Bakke, its decision affirming the District Court's grant of summary judgment to the University was incorrect.

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Primary Sources - The History 

Text of the Constitution

Rep. John Bingham

U.S. Const. amend XIV, § 1

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Background:    Framed primarily by Republican Representative John Bingham, the Fourteenth Amendment was passed by the Thirty-ninth Congress as one of the Reconstruction Amendments.  It was passed in part to combat Black Codes, which were statutes passed in Southern states to limit the rights of African Americans after they were freed from slavery by the Emancipation Proclamation.  These statutes borrowed elements and language from antebellum slave laws and restricted rights, such as the right to move freely, vote, and testify in court.  The Fourteenth Amendment addressed Black Codes and other discriminatory legislation by guaranteeing rights to all citizens, including those former slaves who were newly made citizens.  The Senate passed the Fourteenth Amendment on June 8, 1866 and the House on June 13.  It was ratified on July 9, 1868, when 28 of the 37 states passed the amendment.  For more information on history of the Fourteenth Amendment, visit the Library of Congress online.

Reconstruction-Era Arguments For and Against Remediating the Effects of Slavery as a Justification for What is Now Termed Affirmative Action 

Following the Emancipation Proclamation and the conclusion of the Civil War, there remained a lingering question of how to transition an entire segment of the population from conditions of servitude to citizenship.  There was a movement to pass federal legislation to remedy years of servitude by providing assistance to newly freed slaves to enable them to fulfill the civic duties associated with being citizens of the United States, as well as give them the tools necessary to survive as freedmen.  In some cases, these proposals involved granting special privileges to newly freed slaves that were not afforded to other citizens.  This movement was led predominantly by the Republican Party, which believed in the morality and constitutionality of such provisions.  The debate on these proposals presented a range of views, based both in policy and on the Constitution, on what sort of assistance should be given, whom that assistance should be given to, and how long such assistance should be offered.
One group of proponents of this type of "affirmative action" believed that assistance for newly freed slaves should be offered only during a short period of transition.  They believed that once the newly freed slaves had the skills necessary to financially support themselves, such assistance should be terminated.  Others believed that slavery had created an almost irreparable debt owed to freed slaves and their progeny.  They proposed that the United States make attempts to repay the debt for the foreseeable future.  Still another group believed that no special preferences should be given to freedmen at all.  This group believed that as newly made citizens of the United States, these freed slaves should have the same protections, privileges, and remedies as all other citizens, but no more.  They believed that special remedial legislation was unconstitutional, unnecessary and even detrimental to those it was intended to assist.  The laws that were eventually enacted reflect this range of views.


In the aftermath of Civil War, a faction of Americans supported legislation providing temporary privileges to freedmen during their period of transition to citizens.  Such privileges were drafted into laws that would provide assistance for a given number of years and then expire.  Congress could then pass new legislation to continue and extend this privilege, if they determined assistance was still necessary.  This is most aptly illustrated by the legislation creating the Freedmen’s Bureau.  The Freedmen’s Bureau was a governmental entity primarily charged with providing rations and other life essentials to newly freed slaves, destitute citizens, and refugees.  Refugees were both African Americans freed by the Emancipation Proclamation and those free prior to it.  Refugees also encompassed southern whites fleeing from secession.  Whether a citizen was destitute or not was determined by the Commissioner of the Freedmen’s Bureau, who was charged with distributing rations.  The Bureau was perhaps most successful in creating educational opportunities for freedmen, assisting with the education of more than 100,000 freedmen and their progeny.  The legislation creating the Bureau was originally drafted to expire after a year.  Later legislation continued the Bureau for an additional two years.  Proponents of the Freedmen’s Bureau legislation cited the war powers, Privileges and Immunities Clause of the Fourteenth Amendment and the Thirteenth Amendment as sources of Congress’ authority to enact the Freedmen’s Bureau.   See John M. Bickers, The Power to Do What Manifestly Must be Done: Congress, the Freedmen’s Bureau, and Constitutional Imagination, 12 Roger Williams U. L. Rev. 70, 103-9 (2006).

1.           STATUTES

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That there is hereby established in the War Department, to continue during the present war of rebellion, and for one year thereafter, a bureau of refugees, freedmen, and abandoned lands, to which shall be committed, as hereinafter provided, the supervision and management of all abandoned lands, and the control of all subjects relating to refugees and freedmen from rebel states, or from any district of country within the territory embraced in the operations of the army, under such rules and regulations as may be prescribed by the head of the bureau and approved by the President.

Background:    The Freedmen’s Bureau was initiated by President Lincoln at the end of the Civil War and passed by the Thirty-ninth Congress in March of 1866.  It was organized under the War Department with the initial purpose of aiding former slaves during the war and for one year after the war ended.   The Bureau was charged with providing temporary relief in the form of rations to freedmen, war refugees, and destitute citizens.  It provided health care to those without the financial assets to purchase it.  It adjudicated disputes, overturning other courts’ discriminatory rulings, and in some areas, established courts where freedmen could bring their complaints.  The Bureau helped to facilitate the hiring of freedmen through the drafting of employment contracts.  Although the Bureau attempted to redistribute land formerly held by the confederate states to freedmen, their efforts were largely thwarted by President Johnson’s efforts to return former confederate property to its pardoned owners.  The Bureau’s most successful efforts were those to educate newly freed slaves in schools and universities built especially for them.  Although the Bureau was only intended to exist for a year, the Act of July 16, 1866 extended its life by two years. Read more about the Freedmen Bureau at the National Archives.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the act to establish a bureau for the relief of freedmen and refugees, approved March third, eighteen hundred and sixty-five, shall continue in force for the term of two years from and after the passage of this act.
Background:    The Act of July 16, 1866 extended the life of the Freedmen’s Bureau for two years and expanded its powers, especially with regard to educational efforts.  The Act was originally passed by Congress in February 1866 but was vetoed by President Andrew Johnson.  In July of 1866, Congress passed the Act a second time.  Although President Johnson once again vetoed the Act, Congress was able to override his veto.
And be it further enacted, That the commissioner of the bureau shall, on the first day of January next [1869], cause the said bureau to be withdrawn from the several States within which said bureau has acted and its operations shall be discontinued.  But the educational department of the said bureau…shall be continued as now provided by law until otherwise ordered by act of Congress.

Background:    The Act of July 25, 1868 required that by January 1869, most Bureau officers were withdrawn from states and Bureau activities ceased.  An exception was carved out for educational efforts.  The Educational Department of the Bureau was intended to continue indefinitely as a separate entity.  However, the Educational Department suffered after the General Superintendent of Education, Reverend Alvord resigned, in 1870.  The Educational Department later ran out of money and dissolved in March of 1871.


Rep. Charles Sumner

Cong. Globe, 38th Cong., 1st Sess. 2799 (1865):

It is evident, then, that the freedmen are not idlers.  They desire work.  But in their helpless condition they have not the ability to obtain it without assistance.  They are alone, friendless, and uninformed,  The curse of slavery is still upon them.  Someone must take them by the hand; not to support them,  but simply to help them to that work which will support them. . .The intervention of the national Government is necessary.  Without such intervention, many of these poor people, freed by our acts in the exercise of a military necessity, will be left to perish. (Emphasis added)

Background:    Mr. Charles Sumner, a Republican Senator from Massachusetts, spoke in favor of the establishment of a bureau that would provide educational privileges to freedmen and aid to those in need – what would become the Freedmen’s Bureau.  Sumner believed the situation for freedmen in the southern states was dire.  His support of the Act was based on his belief that because the newly freed slaves derived their freedom from legislative and executive acts of the United States government, the federal government should also be charged with protecting and assisting them.  He noted that such aid was necessary during this period of transition, until such a point that the newly freed slaves could be “rendered useful, or at least saved from being a burden.”  While others believed aid for newly freed slaves should come from individual charities in the North, Sumner believed the assistance necessary was too vast and complex for anyone but the national government to tackle.  For more information on Mr. Charles Sumner, see


The belief that slavery created an almost irreparable debt to African Americans surfaced in the wake of the Civil War and during the drafting of the Fourteenth Amendment.  This view has continued into the present.  The moral foundation behind this idea can be traced either to the fact that many of today’s African-Americans have slaves in their lineage, or the pervasive, lingering disadvantages that slavery and discrimination have wrought for African Americans.  Both historical and contemporary proponents of this belief seek legislative means through which to address and remedy the lingering effects of slavery for however long such remediation is deemed necessary.  Education, particularly at the university level, is cited by many who hold this view as a means through which discriminatory attitudes can be overcome and retribution can be paid.  Therefore, those who support continued remediation, often seek to provide it in the form of university education.

1.           STATUTES

And be it further enacted, That the object for which this corporation is created is declared to be the establishment of a charitable institution for the instruction of freedmen in the industrial pursuits of life and fit them for independent self-support, and to afford a temporary home for such freedmen as may, from sickness, misfortune, age, or infirmity, require fostering care until otherwise relieved.
Gen. Oliver Howard

Background:    The Charter for Howard University was established by the Thirty-ninth Congress on June 21, 1866 and approved by President Andrew Johnson on March 2, 1867.  The original idea for the act came from the First Congregational Society of Washington, which in the wake of the Civil War desired to establish a theological seminary to educate African American clergymen.  This idea was expanded by the Thirty-ninth Congress who elected to establish a larger college of Liberal Arts and Medicine primarily for freedmen, but open to people of all race and gender without distinction.  The University was named after the Commissioner of the Freedmen’s Bureau, General Oliver Otis Howard, who would later become the first president of the University.  The initial mission of the University was to educate newly freed slaves and aid with their transition to citizenship.  Although the mission of the University has evolved over time, it has continued to seek ways to erase all vestiges of prejudice and discrimination from American society and to repay the debt created by slavery. Originally, funding for the University came almost exclusively from the Freedmen’s Bureau.  However, in 1879, after the Bureau ceased operation, Congress approved a special appropriation for the University.  Between 1879 and 1910, Congress awarded Howard University financial gifts totaling $1,217,848.  In 1928, Howard’s charter was amended to authorize the appropriation of federal money for the maintenance and growth of the University.   Howard University is unique in that it is a private university that receives federal appropriations to assist with its general operation, rather than just tax breaks or student loan assistance. Howard University still receives federal appropriations.  For more information on the history of Howard University, read this article. For more information on Howard’s funding, please see this article from the U.S. Department of Education.             


A faction of lawmakers opposed all legislation awarding privilege or assistance to freedmen.  Some opponents fought against federal assistance, instead believing that the states should be tasked with assisting freedmen.  Others fundamentally opposed legislation that was intended to provide assistance to only some citizens, based on former condition of servitude.  One argument was that slavery had already been abolished through the Thirteenth Amendment.  All African Americans, including newly freed slaves, were made citizens of the United States.  As citizens they should be awarded the same privileges and protections as all other citizens.  Some argued that legislation favoring one racial group over another was unconstitutional and distorted the Framer’s intent in drafting the Fourteenth Amendment. Furthermore, some believed that such legislation awarding privilege or assistance was detrimental, fostering the idea that African Americans were inferior and needed special attention to fulfill their civic duties.


Rep. Thomas A. Hendricks

Cong. globe, 38th Cong., 1st Sess. 3346 (1864)

Can the Government of the United States appoint a guardian to take possession of the property and to take charge of the person of one who, because of tender years or because of want of intellect, is not competent and able to take care of himself or his property?...That is a power which belongs exclusively to the States of the Confederacy and not at all to the General Government…I am not able to see that under the Constitution Congress may enact such a measure as this….Such a power would swallow up to a very large extent a very important portion of the powers enjoyed by the States. (Emphasis added)

Background:    During a debate on the enactment of the Freedmen’s Bureau, Representative Hendricks spoke on what he believed was the unconstitutionality of such legislation.  He believed the affirmative action measures in the Freedmen’s Bureau legislation, particularly the taking of ex-Confederate land for the use of freedmen’s education, was beyond what Congress was constitutionally capable of doing and a violation of the separation of powers.

Sen. Edgar Cowan

[B]ut are we to alter the whole frame and structure of the laws, are we to overturn the whole Constitution, in order to get at a remedy for these people?  If they are put upon the same footings as white people, then they have the same remedies as white people ; they have the same remedies that the honorable Senator has, or that I have, or that any other Senator has; and there is no necessity for this new jurisdiction, this new power that is to be invoked for their protection.  We have been told that if a man was made free, and particularly if these colored people were made free, that that was all that was necessary; that then they would take care of themselves just like other people; and if the laws were framed generally so as to operate upon all people, they would operate upon them, and they would take advantage of it and protect themselves.

Background:    During a debate concerning assistance for newly freed slaves, Representative Wilson argued that assistance was needed to counter discriminatory legislation in the southern states.  Mr. Cowan, a Republican Senator from Pennsylvania, took issue with this assertion.  He argued that the Constitution of the United States provides that the rights of free men cannot be infringed upon.  He noted that a remedy against discriminatory legislation already exists in the Fifth Amendment.  He concluded that since the Constitution already safeguards the rights of all American citizens, legislation allowing for special privilege and remedy should not be allotted to the newly freed slaves.  For more information on Cowan.

Rep. James G. Blaine

That there is no longer any distinction between American citizens; that we are all equal before the law; and that all legislation respecting the rights of any person should go through the regular standing committees.

Background:    During the opening of the Forty-fourth Congress in 1875, Representative J.G. Blaine proposed ending the Select Committee on Freedmen’s Affairs.  The Committee was established in 1865 and was referred all matters concerning freedmen.  Members were charged with reading the reports and correspondence of the Freedmen’s Bureau agents to determine the type of aid that would be most useful in assisting freedmen.  They were then responsible for drafting legislation to allow for such aid. Blaine noted that the Committee was no longer necessary, as amendments to the Constitution adequately protected the newly freed slaves, without making such provisions for them.

2.          NEWSPAPERS

The Daily Phoenix
The institution of slavery, for the military destruction of which the Freedmen's Bureau was called into existence as an auxiliary, has been already effectually and finally abrogated throughout the whole country by an amendment of the Constitution of the United States, and practically its eradication has received the assent and concurrence of most of those States in which it at any time had an existence.  I am not, therefore, able to discern, in the condition of the country, anything to justify an apprehension that the powers and agencies of the Freedmen's Bureau, which were effective for the protection of freedmen and refugees during the actual continuance of hostilities and of African servitude, will now, in a time of peace and after the abolition of slavery, prove inadequate to the same proper ends.

Background:    In an opinion piece arguing against the Freedmen’s Bureau Bill, the Daily Phoenix challenged the continuation and expansion of the Bureau.  It argued that the bill, allowing for an expansion of power, would be unconstitutional as it placed the southern states under military jurisdiction after the cessation of war hostilities and the end of slavery.


Pres. Andrew Johnson

[Congress] has never deemed itself authorized to expend the public money for the rent or purchase of homes for the thousands, not to say millions, of the white race who are honestly toiling from day to day for their subsistence.  A system for the support of indigent persons in the United States was never contemplated by the authors of the Constitution.  Nor can any good reason be advanced why, as a permanent establishment, it should be founded for one class or color of our people more than for another.

Background:    President Johnson vetoed the bill to continue and expand the Freedmen’s Bureau both in February and July of 1866 (for more information on the legislative history of the bill, please see the Act of July 16, 1866).  The quotation below comes from his remarks after vetoing the bill for the first time.  Johnson believed that control of education should be left to the states and smaller entities like private associations and individuals.  Johnson believed additional assistance to freedmen, who now as citizens had the full protection of the Constitution, went beyond the intent of the framers of the Fourteenth Amendment, and was thus unconstitutional.
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Tournament Instructions

Resolved:  Is race conscious affirmative action consistent with Fourteenth Amendment to the United States Constitution?
Using historical materials related to the 14th Amendment, write an appellate brief arguing whether or not state universities can use race conscious affirmative action.
Teams of two high school students will be responsible for writing an appellate brief on their class’s FantasySCOTUS blog, and submitting an oral argument video.

The Brief

Teams will have to pick one side to argue on. The Petitioner will argue on behalf of Abigail Fisher that the University of Texas' affirmative action policy is unconstitutional. The Respondents will argue on behalf of the University of Texas that the affirmative action policy is consistent with the Fourteenth Amendment's guarantee of equal protection.
The brief should have the following sections:

The brief should be submitted as a blog post by March 4, 2016 (extended due date). The brief must be a minimum of 2,000 words. For examples of what a complete Supreme Court brief should contain, see the winning briefs from previous years:

We recommend you develop your brief in Microsoft Word or Google Docs, and paste it into the blog post when you are finished. Be sure to proof read your work. The work must be yours, and you may not seek help from anyone else–including attorneys or law students. Students who submit plagiarized briefs will be disqualified.

The Oral Argument

In addition to the brief, each team must submit a YouTube video of their oral arguments. We will provide your teachers with questions to ask, and they can of course supplement with their own questions. Each argument must be at least ten minutes in length. The videos must be submitted with the blog post on Friday, February 26, 2016. For examples of how the arguments should be structured please watch some of the submissions from last year.
The final round of the Virtual Supreme Court Competition will be held at the National Constitution Center as part of the Freedom Day celebration on April 13, 2016. The top two teams from the Harlan will travel, along with their teacher and parents, to Philadelphia on April 13th to debate in front of a panel of expert judges, including lawyers, university level debate champions, and legal scholars.

During the oral arguments, teachers should ask the students the following questions:

  1. How should this Court evaluate race-conscious university admissions programs? Please cite specific Supreme Court Cases, including, but not limited to: Bakke, Grutter, Parents Involved in Community Schools, and Ricci.
  2. Has the University of Texas at Austin shown that its use of race as an admissions-plus factor meets the strict scrutiny test? Can you explain strict scrutiny and how it applies in this case?
  3.  Does the language of the Fourteenth Amendment support the notion of race-based affirmative action? Why or why not? In answering this question, students should refer specifically to the language of the amendment.
  4.  Looking at legislation passed during the Reconstruction-era, does the weight of historical evidence support affirmative action programs? Why or why not? In answering this question, please cite specific of the following pieces of legislation:
  5. Explain the Freedmen’s Bureau. Does this post-Civil War program provide support for affirmative action extending to modern day program or not? What arguments were raised by proponents and opponents of the Freedmen’s Bureau during the Reconstruction period?
  6. What are the lingering effects of slavery in modern society? Is it the state’s responsibility to ensure that all badges and incidents of slavery are fully addressed?
  7. What do you make of the argument that we should live in a “colorblind society”?

Oral arguments will be judged based on our scoring rubric.