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作者：Anonymous 在 罕见奇谈 发贴, 来自 http://www.hjclub.org
A Judicial Role Call on Affirmative Action, Part I:
The Liberal Wing
Editorial
April 2003
by: Lucas Morel
The Supreme Court recently heard oral arguments in Grutter v. Bollinger and Gratz v. Bollinger, which address the University of Michigan’s affirmative action programs at their law school and undergraduate college, respectively. While legal experts debate if oral arguments really influence the Court’s decisions, the questions posed by the justices shed some light on how the Court views the role of race in higher education. In this and a follow-up essay, we present a roll call of the nine justices’ concerns.
Justice Ginsburg presumed that racial diversity was a compelling state interest by focusing her questions on the use of race as one of several factors in achieving diversity in higher education. Given the high selectivity of the University of Michigan Law School, which draws a highly qualified applicant pool, the emphasis upon racial diversity appears to allow few alternatives to the direct consideration of race as a "plus" in the admissions process. Ginsburg also cited the "positive discrimination" practiced by foreign nations as possible evidence that affirmative action does not further divide multi-ethnic countries—a point rebutted by Scalia, but one that shows Ginsburg’s belief that the advantages of affirmative action outweigh its disadvantages.
When the attorney defending Michigan’s racial preferences refused to provide a clear definition of the "critical mass" of minority students needed for racial diversity, Justice Souter suggested that a constitutionally "permissible zone" between token numbers and the fixed quotas banned by the Bakke (1978) ruling might be what the law school had in mind. He also questioned the theory that affirmative action stigmatizes its recipients and perpetuates the stereotypes that keep racial bigotry alive by citing surveys of minority students who did not feel the stigma of racial inferiority as beneficiaries of affirmative action. Last, Souter seemed persuaded that Michigan’s pursuit of racial diversity showed non-minorities that minorities did not all think alike.
Justice Breyer agreed with this last line of reasoning, and asked questions that showed the greatest sympathy for racial diversity as a compelling state interest in higher education. Given the extent to which blacks, Hispanics, and Native Americans suffer from poverty and segregation, Breyer thought selective schools’ desire to educate leaders to address this problem justified racial diversification of their students. His questioning was the most tone-deaf to arguments on behalf of individual rights, especially when compared with the "extraordinary need" of society for racially diverse leadership. Breyer claimed to read the equal protection clause of the 14th Amendment to protect all persons, but argued in Orwellian fashion that for "the discriminated-against people" (i.e., whites) "the law does respect you, but we are trying to help some others." With "help" like this, who needs the Constitution?!
Aside from a reference to a brief submitted by retired military officers in favor of affirmative action, Justice Stevens said little at oral argument. Stevens authored an opinion in Bakke that supported Allan Bakke’s admission to the U.C. Davis medical school on statutory grounds, deliberately avoiding reference to the 14th Amendment’s equal protection clause. Nevertheless, subsequent cases involving racial preferences found him supporting affirmative action on constitutional grounds, so there is little chance that his vote will stray from his fellow liberal justices.
Because the Supreme Court believes the question is not if racial classifications are permissible but when and how they are used, a quagmire of judicial rulings and tests obscures what should be a clear mandate of the Constitution: "No State shall… deny to any person within its jurisdiction the equal protection of the laws." The landmark Civil Rights Act of 1964 expressed this even more explicitly with regards to racial discrimination: "No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance."
We turn next to the conservative wing of the Court, and consider if enough votes will surface to refine or even reject Powell’s lone opinion for the Court in Bakke, the controversial precedent that has directed the Court for the past quarter century.
A Judicial Role Call on Affirmative Action, Part II:
The Conservative Wing
"When does all of this come to an end?" Thus spake Justice Scalia in last week’s oral arguments about the University of Michigan’s affirmative action programs. He offered the strongest criticism of racial diversity as a compelling state interest. Scalia took issue with Michigan’s claim that racial diversity was "compelling" by calling the University’s dual objectives of high admissions standards and racial diversity "a problem of Michigan’s own creation." If their law school really believed that diversity was crucial to their educational mission, they could simply lower their admissions qualifications and thereby increase minority enrollment without using the suspect classification of race to benefit a few at the expense of others.
Scalia was also not persuaded that the percentage range of minorities sought was not a de facto quota, insofar as it suggested a minimum threshold for a "critical mass." Commenting on Ginsburg’s favorable reference to the affirmative action practiced by foreign countries, he suggested that these policies moved them further from "a color-blind society" and closer to "percentage entitlements for the various races." Most importantly, he did not believe that the constitutionality of affirmative action depends on how many are treated unequally on the basis of race. For Scalia, when it comes to constitutional rights, it’s always the minority of one—the individual—who needs the equal protection of the laws.
Chief Justice Rehnquist and Associate Justice Kennedy both smelled a quota behind the points awarded to favored minorities in Michigan’s undergraduate admissions and the "critical mass" target of the law school. Rehnquist was the most persistent in trying to get a clear definition of what the University meant by "underrepresented," "critical mass of," and "meaningful" or "sufficient number of" minorities—to no avail.
Justice Kennedy asked if college administrators should be concerned if racial minorities continued to be "underrepresented" on their campus. This concern for what some have called the "resegregation" of education suggests that while Kennedy finds Michigan’s affirmative action suspect, he also wonders if the Court should offer alternative admissions policies that ensure that racial discrimination not insinuate itself back into college admissions. While suggestive of judicial policy-making, a role the Court is ill equipped to perform, it does indicate a laudable judicial interest in securing equal opportunity for all.
Equality was the theme of Justice Thomas’s only intervention in the extended arguments held for the dual Michigan cases. In the final minutes of the second case, which addressed Jennifer Gratz’s claim that racial preferences at the undergraduate school denied her equal consideration with favored minorities, Thomas first revisited the proposition that Michigan had created its own problem by trying to be racially diverse and what Scalia called a "super-duper law school." Failing to get Michigan’s attorney to concede this "tension," Thomas asked if the diversity rationale applied equally to historically black colleges. The attorney replied, "Yes," explaining that almost all HBCs enrolled "diverse student bodies." With no time remaining in Michigan’s presentation, Thomas could not follow up to clarify the attorney’s misunderstanding of his question.
Throughout the oral arguments, all eyes and ears were turned to Justice O’Connor. With Kennedy sniffing out "disguised quotas," that left O’Connor as the lone swing vote among the conservative justices. This comports with her previous opinions on affirmative action, which have served as the lowest common denominator for the justices least inclined to uphold racial preferences.
When the lawyer for Barbara Grutter intimated that race could not be considered at all, O’Connor was quick to remind him that several court precedents permitted racial classifications. She even asked Theodore Olson, who filed the president’s brief against Michigan’s affirmative action policies, if he agreed with Justice Powell’s opinion in Bakke that race could be used as a "plus" in college admissions. While Olson deftly avoided committing the federal government to this part of Powell’s opinion, O’Connor showed her concern that Court precedent should be upheld. Last, she pressed Michigan’s counsel on the lack of "a fixed time period" for their affirmative action programs. Michigan denied that their programs were permanent, but O’Connor’s questioning implied that a state’s use of race must be narrow in scope and duration.
O’Connor is torn between seeing racial diversity as a "compelling state interest" and wishing to put affirmative action on the course of ultimate extinction. Might she rule that racial diversity could be compelling but only if limited in scope and duration? Aside from losing the votes of Rehnquist, Scalia, Thomas, and Kennedy, this reasoning would not provide enough clarity for colleges like the University of Michigan that already use racial preferences with nary a concern for their eventual elimination. Additional guidelines building upon Court precedent would have to be spelled out by the Court. With the "compelling state interest" question apparently postponed for a future case, it looks like "Bakke today, Bakke tomorrow, Bakkeforever."
We again ask Scalia’s question, "When does all of this come to an end?" For an answer, we can do no better than Frederick Douglass, who when asked how to end slavery, replied, "Stop stealing." When will affirmative action end? As soon as the government, including the courts, gets out of the business of deciding the who, what, where, when, and why of racial classifications—and back into the business of protecting the individual rights of all American citizens regardless of race. Barbara Grutter and Jennifer Gratz have asked Michigan to stop stealing their right to the equal protection of the laws. May it so please the Court.
Lucas E. Morel is assistant professor of politics at Washington and Lee University in Lexington, Virginia and is an adjunct fellow at the Ashbrook Center.
作者：Anonymous 在 罕见奇谈 发贴, 来自 http://www.hjclub.org |
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