Tuesday, January 10, 2017

Just Published "Law Professor and Accidental Historian: The Scholarship of Michael A. Olivas" (Ediberto Román, ed., Carolina Academic Press, 2017)

It is my great pleasure to announce the publication of Law Professor and Accidental Historian: The Scholarship of Michael A. Olivas (Ediberto Román, ed., Carolina Academic Press, 2017) (ISBN978-1-61163-686-4).
Law Professor and Accidental Historian is a timely and important reader addressing many of the most hotly debated domestic policy issues of our times—immigration policy, education law, and diversity. Specifically, this book examines the works of one of the country's leading scholars—Professor Michael A. Olivas. Many of the academy's most respected immigration, civil rights, legal history, and education law scholars agreed to partake in this important venture, and have contributed provocative and exquisite chapters covering these cutting-edge issues. Each chapter interestingly demonstrates that Olivas's works are not only thoughtful, brilliantly written, and thoroughly researched, but almost every Olivas article examined has an uncanny ability to predict issues that policy-makers failed to consider. Indeed, in several examples, the book highlights ongoing societal struggles on issues Professor Olivas had warned of long before they came into being. Perhaps with this book, our nation's policy-makers will more readily read and listen closely to Olivas's sagacious advice and prophetic predictions.
The Table of Contents, plus the Introduction and conclusion to my contribution to this excellent collection, If One Wants to Change Societal Norms One Must Change Society: Lessons from Michael Olivas and ‘Constitutional Criteria’ in Managing Higher Education Admissions Decisions, follow.

Larry Catá Backer[1]

In this second decade of the 21st century, no reader can explore critical areas of U.S. law, and especially the ethno-sociology of U.S. law, without engaging with the work of Michael Olivas. To some large extent, Michael Olivas has been an important player in that great shift of societal structures that marked the last third of the 20th century and the beginning of this one.[1] This shift changed the societal substructures of the U.S. polity in ways that made the legal changes witnessed during that period—culminating most recently in the extension of protection of rights to marry irrespective of the sex of the couple[2]—plausible as matters of constitutional interpretation.[3] Professor Olivas may well have sensed, in many respects well before many of his academic colleagues, that in order to change legal superstructures one must first expose and change the societal sub-structures; that is only changes in social perception, in the sense of what is acceptable open the possibilities of changes the legal superstructures and their interpretive possibilities.[4] Nowhere is this premise more acutely situated than within the structures of education in the United States. Arranged, like society, into tiers and classes reflecting social, economic and cultural status, educational institutions, especially post-secondary institutions,[5] serve as gatekeepers to position and power to speak for and to societal actors—to effectively shape societal views of the “conventional” and “acceptable” in all spheres of national activity. To transform law, one must first transform societal space; to transform societal space, one must expand the boundaries of who is included in society; to expand the boundaries of inclusion one must open access to the university.

It is in this context that I consider Professor Olivas’ reflections[6] on one of the most interesting cases of access to the university, Bakke,[7] and what it has to say for both the legal and societal structures of U.S. legal culture. Those reflections are worth careful study in the context of the ongoing societal and legal-constitutional conflicts that remain unresolved in this Republic.[8] I start with Professor Olivas’ consideration of the structures of admission. I then draw some enduring insights from that exploration. The legal construction of admission then suggests the critical role it plays in societal transformation. It is not enough for law to represent societal norms. Where society includes some but not all elements of a polity, both law and the incentives to interpret foundational (constitutional) norms tend to reinforce the society it reflects. Opening societal structures provides the basis for transforming societal norms (including law and the framework of constitutional interpretation) to reflect the societal space thus transformed.

* * *

Professor Olivas, then, contributes in significant ways to the great cultural dialogue in which U.S. elites are currently engaged. That dialogue implicates not merely its ostensible object—the scope of discretionary authority in university admissions sensitive to affirmative action. Rather, it touches on core societal issues—who speaks for society and its subgroups?[9] Who “owns” the issue and can speak authoritatively to the societally protective apparatus of government, especially its administration and courts.[10] These provide the undertones to Professor Olivas’ excellent analysis. But it also suggests that little has changed in the intervening decades. The battle lines, so needlessly sharply drawn in the last third of the last century remain as sharp and cutting today as they did then. The irony, of course, is that the greatest proponents of the sharpest division tend to share very similar world views and normative frameworks, just geared to the needs of the societal sub groups whose interests they believe they advance.

What remains is a kind of dialogue based on mutual non-recognition. This is a dialogue which breeds subordination as groups apply the normative principles of conformity and assimilation to as large a group of people as possible. Social cohesion, the discipline of the group in the face of mutual incompatibility, requires choice. From the perspective of the dominant group, subordination means reducing contrary cultural norms to a silence in the public (though not the private) space. Polyculturalism can exist in theory—in reality it describes a transitional period between the dominance of one set of socio-cultural norms and another.[11] In a sense, the generation-long discussion of admissions policy in the face of the re-negotiation of societal space for once excluded or marginalized segments of society, suggest the constraints of mutual chauvinism in the face of transformative uncertainty.[12] What is clear, though, is as simple as it is difficult to attain—to change social norms one must first change society. But to change society, one must be prepared to accept the consequences. The transformed society will itself draw

[1] Michael Olivas is the author or co-author of fifteen books, including The Dilemma of Access (1979), Latino College Students (1986), Prepaid College Tuition Programs (1993); The Law and Higher Education (4th ed., 2015); Colored Men and Hombres Aqui: Hernandez V. Texas and the Emergence of Mexican American Lawyering (2006); Education Law Stories (2007); No Undocumented Child Left Behind (2012); and Suing Alma Mater: Higher Education and the Courts (2013).

[2] See Obergefell v. Hodges, 135 S. Ct. 2584 (2015).

[3] Cf. Jane S. Schacter, Metademocracy: The Changing Structure of Legitimacy in Statutory Interpretation, 108(3) Harv. L. Rev. 593-663 (1995).

[4] I have considered these issues in other contexts. See, e.g., Larry Catá Backer, Exposing the Perversions of Toleration: The Decriminalization of Private Sexual Conduct, the Model Penal Code, and the Oxymoron of Liberal Toleration, 45 Fla. L. Rev. 755–802 (1993); Larry Catá Backer, Tweaking Facts, Speaking Judgment: Judicial Transmogrification of Case Narrative as Jurisprudence in the United States and Britain, 6 S. Cal. Interdisc. L.J. 611–662 (1998); Larry Catá Backer, Altheimer Symposium on Racial Equity in the 21st Century: Culturally Significant Speech: Law, Courts, Society and Racial Equity, 21 U. Ark. Little Rock L. J. 845-879 (1999). Larry Catá Backer, Chroniclers in the Field of Cultural Production: Interpretive Conversations Between Courts and Culture, 20 Bos. C. Third World L.J. 291–343 (2000).

[5] For a criticism of bifurcating approaches to access to education, see, e.g., Omari Scott Simmons, Class Dismissed: Rethinking Socio-Economic Status And Higher Education Attainment, 46 Ariz. St. L.J. 231, 242–243 (2014).

[6] Michael A. Olivas, Constitutional Criteria: The Social Science and Common Law of Admissions Decisions in Higher Education, 68 U. Colo. L. Rev. 1065 (1997).

[7] Regents of the Univ. of California v. Bakke, 438 U.S. 265 (1978) (allowing race to be one of several factors to be considered as criteria in college admission, but prohibiting the use of specific quotas).

[8] See, e.g., Gratz v. Bollinger, 539 U.S. 244 (2003); Grutter v. Bollinger, 539 U.S. 306 (2003); and now Fisher v. Univ. of Texas at Austin, No. 09-50822, -- F. 3 – (cert. granted, No. No. 14-981, June 29, 2015). Fisher is discussed in Debra Cassens Weiss, Cert Grant Sends University Affirmative Action Case Back to the Supreme Court, ABA Journal (June 30, 2015), http://www.abajournal.com/news/article/cert_grant_sends_university_affirmative_action_case_back_to_the_supreme_cou/ (‘“Essentially ignoring the court’s admonition to hold UT to the demanding burden articulated in its equal protection clause precedent, the 5th Circuit approved UT’s program under what amounts to a rational-basis analysis,’ the cert petition says.”).

[9] See generally, Richard Delgado, Rodrigo's Eleventh Chronicle: Empathy and False Empathy, 84 Calif. L. Rev. 61 (1996).

[10] Joseph W. Schneider, Social Problems Theory: The Constructionist View, 11 Ann. Rev. Soc. 209, 214–19 (1985) (on the ways in which elites compete for ownership of issues, and how those issues are shaped as a result).

[11] Backer, By Hook Or By Crook, supra note 54, at 439.

[12] John H. Langbein, Cultural Chauvinism in Comparative Law, 5 Cardozo J. Int'l & Comp. L 41, 48–49 (1997).


Preface ix
Ramon Gutierrez

Introduction: Michael A. Olivas and the Study of Latina/os
and the Law xvii
Kevin R. Johnson
I. Legal History xviii
II. Immigration xx
III. Law and Education xxi
Conclusion xxii

The Chronicles of Immigration Law 3
Steven W. Bender
Excerpts from Michael A. Olivas, The Chronicles, My Grand­
father’s Stories, and Immigration Law: The Slave Traders
Chronicle as Racial History 15

Michael Olivas and the Ownership of Mexican American
Legal Scholarship 27
Christopher David Ruiz Cameron
Excerpts from Michael Olivas, The Arc of Triumph and the
Agony of Defeat: Mexican Americans and the Law 32

La gran lucha: Michael A. Olivas, Breaking the Law on Principle,
and Confronting the Risks of Representation 35
Marc­ Tizoc González
Breaking the Law on Principle: Olivas’ Risk of
Representation Case Studies 38
The Risk of Nonrepresentation 39
The Risk of Terminated Representation 46
The Risk of Truncated Representation 53
La gran lucha 59
Conclusion 73

In Defense of My People: Alonso S. Perales, the Rule of Law
and the Development of Mexican-American Public
Intellectuals, Edited by Michael A. Olivas 75
Gloria Valencia­Weber
A. Michael Olivas’ Guide to Discovering Alonso S. Perales 75
B. Introducing Alonso S. Perales 77
C. A Reviewer’s Closing Thoughts 84
Excerpts from In Defense of My People 88

The Purposive Historian 93
Eloisa C. Rodriguez­ Dod

Toward Justice: Michael A. Olivas,
and Undocumented College Student Residency 99
Jennifer M. Chacón
Lawyer, Scholar, and Lawyer’s Scholar 101
Bridging Divides, Developing Insights 103
DREAMing and Fighting 104
Conclusions 106
Excerpts from Michael Olivas, IIRIRA,
the Dream Act, and Undocumented College
Student Residency 106

Plyler v. Doe, Olivas v. Kobach 111
Gabriel J. Chin
I. The Story of Plyler v. Doe 112
II. Michael and Plyler 115
Conclusion 120
Excerpts from Michael Olivas, Understanding
No Undocumented Child Left Behind 121

What Happens to a Dream Deferred? 127
Shoba Sivaprasad Wadhia
Excerpts from Michael Olivas, Dreams Deferred:
Deferred Action, Prosecutorial Discretion, and
the Vexing Case(s) of Dream Act Students 134

Olivas on State and Local Immigration-Related Statutes
and Ordinances 145
George A. Martínez
Excerpts from Michael Olivas, Immigration­ Related
State Statutes and Local Ordinances: Preemption,
Prejudice and the Proper Role for Enforcement 153

Time, Place, Manner (and Messenger):
Michael Olivas as a Storyteller 157
Laura Rothstein
Michael Olivas and Storytelling 159
Overview of the Article 161
The Affirmative Action Debate within the
Desegregation History 164
Time 167
Place 173
Manner 175
Messenger — Why It Matters Who Provides the Leadership
or Who Is the “Face” of Advocacy 178
Where We Are Today — Strategy Matters — and Stories
Should Guide Strategy 180
Excerpts from Michael Olivas, Brown and the
Desegregative Ideal: Location, Race and
College Attendance Policies 181

Professor Michael A. Olivas’ Reflections on Professorial
Academic Freedom: Second Thoughts on the Third
“Essential Freedom” 185
Leticia M. Diaz
Excerpts from Michael Olivas, Reflections on
Academic Freedom 190

The Olivas Guide: Navigating through the Morass of In-State
Residency Requirements for Higher Education 193
Elena Maria Marty­ Nelson
Excerpts from Michael Olivas, Law, Theory, and Practice
of Post­ Secondary Residency Requirements 198

If One Wants to Change Societal Norms One Must Change Society:
Lessons from Michael Olivas and ‘Constitutional Criteria’ in
Managing Higher Education Admissions Decisions 201
Larry Catá Backer

The Diversity Activist Michael Olivas: On Being a Trailblazer
Instead of an Eagle Scout 217
Rachel F. Moran

Latino and Latina Lawyers in the United States:
What Has Happened to Our Crops? 223
María Pabón López and John Trasviña
Introduction 223
Latino Lawyers in the United States Today — A Snapshot 225
Latino Law School Admitted Applicants 226
A. Before the economic downturn 226
B. Following the economic downturn and the dearth
of Mexican American law students 228
Hispanic Students Currently Attend Law Schools
with Lower Median LSAT Scores 229
Conclusion and Reflection 230
Excerpts from Michael Olivas, On Crop Cultivation 231

Michael Olivas, the Critical Race Theory
Lat-Crit Activist Scholar 235
Tanya Katerí Hernández

Walking the Walk for the Latina Professoriate 243
Alfredo García

MALDEF ’s Champion 251
Solangel Maldonado
In the Trenches with MALDEF 252
Tracing MALDEF’s History and Evolution into a
Purposive Civil Rights Organization 256

Writing, Mentoring, and Even Battling Lurking Variables 263
Ediberto Román
Conclusion 274

The Last Word: A Rough Draft of My Life as a Professor 277
Michael A. Olivas

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