Affirmative Action Essays

Affirmative Action Essays-66
Nor did it explain why the Constitution allowed the law school to define the desired, favored diversity in narrow ethno-racial terms that excluded even most minorities (other than African-Americans, Native Americans, and the Spanish-surnamed) while treating other kinds of diversity as either much less weighty or wholly irrelevant to satisfying the overriding diversity rationale.Indeed, as Justice Thomas pointed out in a footnote in his dissent, the school seemed not to value the additional diversity that black men, who are greatly under-represented relative to black women, would provide.

Nor did it explain why the Constitution allowed the law school to define the desired, favored diversity in narrow ethno-racial terms that excluded even most minorities (other than African-Americans, Native Americans, and the Spanish-surnamed) while treating other kinds of diversity as either much less weighty or wholly irrelevant to satisfying the overriding diversity rationale.Indeed, as Justice Thomas pointed out in a footnote in his dissent, the school seemed not to value the additional diversity that black men, who are greatly under-represented relative to black women, would provide.

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But rather than adopting this benign-preference argument, the Court has instead diluted strict scrutiny without actually saying so.

Indeed, the majority did not even come close to applying the strict-scrutiny standard as traditionally understood.

n affirmative-action cases, the Supreme Court never seems to learn the obvious lesson, or perhaps it is determined to finesse it.

The lesson is that universities that are keen to implement race-based affirmative action (and it is hard to find a highly or even moderately selective school that isn't) will figure out a way to do so unless the Court emphatically and clearly prohibits it.

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.The Court's superficial treatment of these questions reveals the profound weakness of its affirmative-action analysis.DIVERSITY AND REMEDIATION First, the plurality had imposed for validating them.Their costs vastly exceed their benefits, and in ways that should cause universities and courts alike to change course.By considering both the legal architecture of the Court's affirmative-action jurisprudence and the empirical evidence regarding the effects of affirmative action in higher education, we can begin to see the defects of today's affirmative-action regime and the powerful case for change.Of these conditions, a rigorous, individualized appraisal of an applicant's actual diversity value was the most important.What the majority did not provide was a coherent account of the meaning of diversity value that went beyond general platitudes.As Chief Justice William Rehnquist correctly noted in his dissent, the majority's review of Michigan's preference system was "unprecedented in its deference." The majority failed to explain convincingly why universities that sponsor preferences should receive more such deference than, say, the private employers or municipal procurement agencies whose plans the Court has struck down in the past under strict scrutiny.After all, universities that adopt and structure such programs are responding to the same kind of political, ideological, competitive, social, legal, and institutional pressures that affect employers and government agencies.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.

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