Affirmative Action Essay Conclusion

The Court reaffirmed this standard in the 2013 case, sending the case back to the lower court on the ground that those judges had failed to correctly apply the strict-scrutiny standard.

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There is much to be said for this argument, although benignity is in the eye of the beholder.

The large number of people disadvantaged by preferences — all whites; the 48% of Hispanics, similar proportions of Asians, and 80% of Native Americans who self-identify to the Census Bureau as white; anyone else (dark-skinned Middle Easterners, for example) who is not considered part of David Hollinger's "ethno-racial pentagon"; and the more than seven million people (many with black ancestry) who consider themselves multi-racial and wish to be identified as such (if they must be racially identified at all) — are unlikely to think of this disadvantage as benign.

But the Court has often held, most recently in (a laxness that has defined courts' attitudes to affirmative-action programs ever since) deviated radically from her own more rigorous approach to that test in earlier cases.

She finessed (or mischaracterized) five crucial questions that bear on affirmative-action policies: the nature of educational diversity; how educational diversity relates to both the "critical mass" idea at the core of Michigan's theory and the ethno-racial stereotypes that the school claimed to abhor; how the majority distinguished between valid and invalid preferences and how Michigan's program fared under that test; the existence of race-neutral alternatives; and the duration of preference policies.

In a case decided in April, the Court upheld Michigan voters' power to ban affirmative action — indeed, to ban the same affirmative-action program at the University of Michigan that the Supreme Court had upheld in 2003 — through a constitutional amendment adopted by voter referendum.

But while Americans consistently voice a firm opposition to affirmative action in university admissions, the public debate surrounding the issue has been clouded by both weakly reasoned Supreme Court jurisprudence and incoherent factual claims by supporters of race-conscious admissions.Its purpose is to force reviewing courts to be rigorous, skeptical, and demanding enough to challenge the government's premises, flush out its true motives, and ensure a tight congruence of evidence, legal categories, and policy justifications.Courts apply strict scrutiny when they have strong reasons to think that the state may be playing with fire around highly combustible materials.Racial classifications epitomize this kind of risk.Many academic advocates of preferences, to be sure, maintain that the Court's strict-scrutiny standard, as elaborated in earlier decisions, was strict, even procrustean, and that a "benign" preference adopted by self-abnegating ethnic majorities should be judged less rigorously.The framers of the 14th Amendment may have countenanced affirmative action favoring former slaves and perhaps their descendants, but they would never have approved of today's affirmative-action programs, in which most of the potential beneficiaries are immigrants or descendants of immigrants.But regardless of whether such programs are constitutional or not, they are undesirable public policy, indeed perverse in practice.LOOSE SCRUTINY The Court's jurisprudence regarding affirmative action in university admissions has taken shape through a series of cases stretching back to in 1978.In that case, the Court allowed a university to consider race in medical-school admissions so long as it was only one of several factors, was used to advance student-body diversity, and there was no specific quota for admission.The Court reaffirmed these three principles a quarter-century later in the 2003 cases of , involving the admissions policy of the University of Michigan's law school, the majority ruled that an admissions process giving some advantage to "underrepresented minority students," but also taking into consideration a variety of other factors (applied strictly on an individual basis for each applicant), did not amount to a quota system and so was constitutionally permissible.But in , which looked at that university's undergraduate admissions policy, the Court found that, because it granted a set number of admission points to any racial-minority applicant (rather than considering each applicant individually as the law school did), it amounted to an impermissible quota system.

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