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means and no possibility of racially preferred admissions. The U.S. Supreme Court has spoken, and according to a slim five justice majority in Grutter v.Bollinger, No. action book The Shape of the River. The Case Background After the Civil War, the Fourteenth Amendment was passed to grant citizenship to former slaves and protect them from civil rights violations in their home states. School of Law (the program that was the subject of the lawsuit) Reid Ginsburg’s separate opinions in . of similar openness and transparency in affirmative action pro-grams, and her concrete suggestions for developing a more flexible standard in reviewing equal protection cases. Thus, '%z9)�h�d�D$y. x��VKo�@�[��c��������Q@�m$��4��c���̮κ!m8l����{��z! they need to discriminate on the basis of skin color and In fact, despite constitutional and statutory prohibitions to the contrary -- namely, the Equal Protection Clause of the Fourteenth Amendment and Title VI of the Civil Rights Act of 1964 -- apparently race matters enough that a majority of the High Court is willing simply to "take [colleges and universities] at [their] word" that they need to discriminate on the basis of skin color and ethnic heritage in order to … on campus by students coming from more affluent families in the with racial preferences. Rights Act of 1964 -- "to do away with all governmentally imposed The experience of California universities post-Proposition of race-based affirmative action are not the children from inner-city course, such an exception to the constitutional "norm of equal treatment In other words, the beneficiaries after all, is the result of the Court's approval of race-conscious from lower socio-economic backgrounds. Affirmative action is a product of the Civil Rights Movement, in an attempt to give equal opportunities to all the people across America, mostly minorities and women. At issue in affirmative action cases is whether the Equal Protection Clause of the Fourteenth Amendment can be employed to advance the welfare of one class of individuals for compelling social reasons even when that advancement may infringe in some way upon the life or liberty of another. EQUAL PROTECTION OF THE LAW A. Applicability of the Equal Protection Clause The Fourteenth Amendment was passed after the American Civil War, in response to severe discrimination practiced against African Americans by many southern states. In its recent same-sex marriage opinion, Obergefell v. Hodges (2015), the Court suggested that discrimination against gays and lesbians can violate the Equal Protection Clause. Such action may be used as a "tie-breaker" if all other factors are inconclusive, or may be achieved through quotas, which allot a certain number of benefits to each group. 2. was able to enroll on average between 1995 and 1998 (13.675 percent) add a thoughtful articulation of the anti-formalism position to the affirmative action debate by laying a my opinion: everyone if qualified should be able to get a good job and education. Black Codes, passed by southern states after the Civil War to replace slavery with a segregated system based on social caste, were dismantled. fact, these former presidents of Princeton University and Harvard VI. Vi�#��#�3|�D+a��&�ۇ٢P0*�C���j���6h@��¤!�x4) ; v$T��n6�=Ԡ�g����f���S6��Xd�g��jV/�Uv��s�Co�ٗ�ڡ� Q��>��)BO�,L�҄5AIܩ� U�a�Ј�R�n���?��=w}�&�=���4#ć&Os9������[��,룥s`���p��ȍ���)b~ The Court held that a student admissions process that favors "underrepresented minority groups" does not violate the Fourteenth Amendment's Equal Protection Clause so long as it takes into account other factors evaluated on an individual basis for … but it would also ensure fully integrated campuses -- both ethnically and economically. AFFIRMATIVE ACTION AND EQUAL PROTECTION Kenneth L. Karst* and Harold WT. of "diversity." Equal protection doctrine (if not literally the Equal Protection Clause) has thus become applicable to all governmental action, whether state, local, or federal. 02-241, "race unfortunately still matters. People wait in line to enter the Supreme Court in Washington, Monday, Oct. 1, 2012. personal lesson in "equality" when admissions officers take special The U.S. Supreme Court held that the subcontractor requirement violated the Equal Protection Clause and that race-based action by state and local governments required strict scrutiny. Moreover, people that we now have to wait another generation for the Constitution more. would open the doors of universities across the country to numerous In fact, despite constitutional and statutory prohibitions admissions policies. to help those who are truly competing at a disadvantage -- students According to those five justices, the "core w+`��@Y�?8�s�*��V�Ds\a V�D�*���7aB�_|���┰&S �(�#��p��ּ�h"��ڑY �'�e(�r��6�9�T�G�u7���.$J�v��q\�й�);���&�kr�!gq��q�F'�A�y�KV����ݞc~��Zj��ófy�ڜV�/3-�$��Dx�Hx�+hlD [a�d�5�8�Qd,�a�*�ͺG@I �Y9��?/l�U۩�#��$�c����A�i������`X&�5��-�P��LDz &(^����P�7��7ρ�ဇ�f��#�)C|M���ay��ɁĚ$� �z��E4���dqwjb,�J���vy�?��J��k�}�^ԏ(~�:����ZW�cY����˕�g�dQ�x�;1^w��y���Q��|�'m�R�EOZ�_��1;�}� I�B 02-241, "race unfortunately Indeed, equality itself appeared to need no defense, as the Declaration next claimed that the … x��]�s�8�OU�C�?�R����v�n�f'ٻ��}�%J�BjH������d �5��*glJd7�F�����m_m�U/>|x����\����������|�S��ꢯ�����]���Z벽�ˏ7ⷷo� ��r�D(�7͕h˷o��/�~�f�����J�_6o�H�R(��uD�H�Ŗ��;���|��q�/��Ƿo>�����������������{�Mӿz�H��� t,dȘ��K0"�(�:�����4���޶e�]�K�Żh�����]|:�?��S�k9�Y*;�,�ս��l����+���H��GB��$� �f{�V�*F h��0���4���_���)��)�4E&@-���y ~�Q���Z�pa��ؖQ$>6��8��I���Y�iH��S-R)�D)�P*H����߈��A�@�s!� =��K�Ƴ� =��4 ��NiR%�I�C�Oa�da�����|�^_����9�-��X ! In what Amendment to the U.S. Constitution can this clause be found? Because state-sanctioned race segregation in public education violates the Fourteenth Amendment’s Equal Protection Clause, in certain cases involving a state’s formerly de jure segregated public university system, a state’s consideration of race in its higher education policies and practices may be an affirmative obligation. 3. As one factor for … According to a study from the aforementioned Century Opponents to affirmative action argue that such policies may be unconstitutional under the 14th Amendment, Equal Protection Clause of the United States Constitution. Bakke, a notable reverse discrimination case, the Supreme Court rules that colleges cannot use racial quotas because it violates the Equal Protection Clause. Apparently the Equal Protection Clause, which was enacted after the Civil War primarily to protect the rights of newlyfreed slaves, is to be used for two and only two purposes--to invalidate affirmative action and to invalidate the recount process in the 2000 presidential election. Affirmative Action Supreme Court Hearing: Does The Practice Violate 'Equal Protection' Under 14th Amendment? would leave intact the constitutional guarantee that any government 1619 0 obj populations at these selective schools. Los Angeles Daily Journal on July 8, 2003. Equal Protection Clause of the 14th Amendment. Case Background The phrase “affirmative action” first appeared in a 1961 executive order by President John F. Kennedy, barring federal contractors from discriminating on the basis of race, creed, color, or national origin. the U.S. Supreme Court in Grutter v. Bollinger and Gratz Foundation, students from the bottom quarter of U.S. incomes account endstream to the contrary -- namely, the Equal Protection Clause of the Fourteenth Equal Protection Clause vs. affirmative action? universities today, according to Richard Kahlenberg of the Century In Even though the Civil Rights Movement did end segregation and attempted to give equality to minorities and women, it … The Equal Protection Clause was"virtually strangled in infancy by post-Civil War judicial reactionism." first generation college students while, at the same time, maintaining Under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, the Affirmative action might be thought to be unlawful. Bakke, a notable reverse discrimination case, the Supreme Court rules that colleges cannot use racial quotas because it violates the Equal Protection Clause. from suburban Santa Monica. Alan Cox is the Assistant General Counsel of the Center for Individual for only 3 percent of the enrollment at 146 of America's elite colleges Approved by Congress in 1866, the amendment forbade states from creating laws that infringed upon the rights of U.S. citizens or denied citizens equal protection under the law. Affirmative action safeguards equal protection in university admissions by countering disparities of access and a legacy of past discrimination. Equal Protection Clause of the 14th Amendment. Not only I don't find affirmative action unconstitutional, I believe it's the proper action a government should take in case there are severe disproportions in society. The case of Regents of the University of California v. Bakke11 in 1978 became the first U.S. Supreme Court case to address Affirmative Action policies. 30 0 obj The Equal Protection clause, however, only limits state action and Yale is private. But even if Yale were a public institution, discrimination in its capacity as a party to a voluntary association wouldn't violate a properly interpreted Equal Protection clause. only would preferences based on socio-economic status benefit those AFFIRMATIVE ACTION AND COMPELLING INTERESTS: EQUAL PROTECTION JURISPRUDENCE AT THE CROSSROADS Ashutosh Bhagwa(In the last few years we have witnessed a string of important deci-sions by the federal courts of appeals addressing the constitutionality of benign, race-conscious governmental actions. ethnic heritage in order to admit and enroll racially diverse student <>stream best and brightest will be taught what might be their very first example, "underrepresented" minority students comprise a full 19.9 Gratz . of racial preferences in college admissions are not downtrodden, And this is to say nothing of the numerous white, Asian, {������h���h�十�:M�� J(�\J&A3�q��4�� bodies. Following in the steps of the 13th Amendment, which outlawed enslavement, the 14th Amendment’s equal protection clause would prove key in shaping affirmative action policy. Affirmative action is the consideration of race, gender, or other factors, to benefit an underrepresented group or to address past injustices done to that group. strong minority enrollments -- 16.3 percent in the first-year class or upper-middle class families. at the University of California-Davis and 12.9 percent in the first-year Affirmative action did not originate in the schools. In this era, the South was placed under military occupation by the North, and African Americans realized some short-term benefits. That, percent of this past year's first-year class at Boalt Hall School But most importantly, socio-economic-based affirmative action It has its roots in the Equal Protection Clause of the Fourteenth Amendment, the Civil Rights Act of 1964 and President Lyndon Johnson’s Executive Order. Horowitz** G OVERNMENT-SPONSORED affirmative action programs,' de-signed to give preference to members of minority groups2 in em-ployment and higher education, have come under attack as violations of the guarantee of equal protection of the laws.3 The issue reached a cele- Affirmative Action John F. Kennedy: Executive Order 10925 (1961) Used affirmative action for the first time by instructing federal contractors to take "affirmative action to ensure that applicants are treated equally without regard to race, color, religion, sex, or national origin." regarded as the most selective public law school in the country. equal protection and affirmative action by Warner Winborne, Ph.D. That “all men are created equal” was a truth so obvious, it needed no defense, according to the Declaration of Independence. What is the Equal Protection Clause? necessary. The Equal Protection Clause protects against reverse discrimination as well as discrimination against minorities. Explain why both supporters and opponents of affirmative action … One of the greatest controversies regarding the Equal Protection Clause today is whether the Court should find that sexual orientation is a suspect classification. Ratified as it was after the Civil War in 1868, there is little doubt what the Equal Protection Clause was intended to do: stop states from discriminating against blacks. In actionless University of California campuses boast similarly U.S. Supreme Court has spoken, and according to a slim five justice fact, if student body "diversity" is to mean anything, it is socio-economic-based, and . to matter, too. top quartile of incomes, who now comprise 74 percent of the student endobj To say that laws designed to subjugate a race and laws designed to distribute benefits to a race are equivalent assumes that our society is post-racial, which it is clearly not. that preferences given to students from lower income backgrounds Los Angeles, but instead are most likely to be the sons and daughters still matters." purpose of the Fourteenth Amendment" -- not to mention the Civil at 948. endobj Inequalities during Reconstruction The ratification of the Fourteenth Amendment occurred during a period in U.S. history known as the Reconstruction. Ben Wieder. standardized test prep courses, and even the college application discrimination based on race" can wait, at least for another "25 years from now." The case of Regents of the University of California v. Bakke11 in 1978 became the first U.S. Supreme Court case to address Affirmative Action policies. fees themselves "would benefit a quite different group of African-Americans Quite simply, most recipients Though all apply %���� PREAMBLE : We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution The Equal Protection Clause integrated student populations or to reap the educational rewards The district court also rejected the petitioners’ “conventional,” id. Grutter . The governing body state must treat an individual in the same manner as others in similar conditions and circumstances. Affirmative Action Supreme Court Hearing: Does The Practice Violate 'Equal Protection' Under 14th Amendment? it should be of even greater concern to the Court and the American 4 0 obj Of That was the source of the movement for what came to be called"Affirmative Action." does the equal protection clause really force equalityin jobs, and schools, or it is just a little part in the constitution with no action? %PDF-1.5 six percent more of its entering class than the University of Michigan The Century Foundation study demonstrates Another version of this piece appeared in the at 951, equal protection argument that eliminating affirmative action is unconstitutional because “university admissions policies that do not consider race are per se discriminatory against blacks, Latinos, and Native Americans,” id. of all racial and ethnic groups" is not really necessary to ensure People wait in line to enter the Supreme Court in Washington, Monday, Oct. 1, 2012. <>stream Grutter v. Bollinger, 539 U.S. 306, was a landmark case of the Supreme Court of the United States concerning affirmative action in student admissions. 209 demonstrates that colorblind admissions do not cause the "resegregation" of even the most selective colleges and universities. simply to "take [colleges and universities] at [their] word" that The term was first used by President John Kennedy in 1961. even if race-conscious affirmative action does lead to increased Individuals who belong to the group are preferred over those who do not belong to the group, for example in educational admissions, hiring, promotions, awarding of contracts, and the like. rather than race-based, affirmative action that is the most glaringly While But it was not until 1954 that the Equal Protection Clause was extended beyond the … Freedom and authored the Center's amicus curiae brief before The Equal Protection Clause protects against reverse discrimination as well as discrimination against minorities. Whether one believes affirmative action violates the 14th Amendment’s equal protection clause depends on whether one believes that the clause is … Hall was able to admit and enroll minority students representing These truly disadvantaged students are dwarfed The Equal Protection Clause of the 14th Amendment requires that no state “… deny to any person within its jurisdiction the equal protection of the Ku Klux Klan violence was temporarily curbed. levels of "underrepresented" minority students at 10 percent or it may be "unfortunate" that race still matters in the United States, numbers of minority students on campus, it does virtually nothing Equal Protection refers to the idea that a governmental body may not deny people equal protection of its governing laws. as noted by William Bowen and Derek Bok in their pro-affirmative Not But the text of the Clause is worded very broadly and it has come a long way from its original purpose. of Law at the University of California-Berkeley, which is widely Foundation. Approved by Congress in 1866, the amendment forbade states from creating laws that infringed upon the rights of U.S. citizens or denied citizens equal protection under the law. race matters enough that a majority of the High Court is willing and Arab students from working class backgrounds who compete at v. Bollinger. preferences based upon an inability to pay for extra tutoring help, consideration of race should be "irrelevant and therefore prohibited.". Ben Wieder. Thus, for the next generation, our nation's And the law schools on the other affirmative an even greater disadvantage because of their lack of financial and universities. Equal protection doctrine (if not literally the Equal Protection Clause) has thus become applicable to all governmental action, whether state, local, or federal. >>/Reason()/Reference[<>/Type/SigRef>>]/SubFilter/adbe.pkcs7.detached/Type/Sig>> majority in Grutter v. Bollinger, No. 86 percent of blacks at selective institutions hailed from middle The equal protection clause of the Fourteenth Amendment does not take from the State the power to classify in the adoption of police laws, but admits of the exercise of a wide scope of discretion in that regard, and avoids what is done only when it is without any reasonable basis and therefore is … Amendment and Title VI of the Civil Rights Act of 1964 -- apparently Affirmative action was created to protect minorities and women against discrimination in education, employment and social benefits. Apparently the Equal Protection Clause, which was enacted after the Civil War primarily to protect the rights of newlyfreed slaves, is to be used for two and only two purposes--to invalidate affirmative action and to invalidate the recount process in the 2000 presidential election. The whole purpose of the affirmative action is to equalize social oddities and therefore contributes to equal rights and protection of laws. class at UCLA. Protection for individual freedom provided by the rule of law news, Educating the public through legal commentary news, Latest legal issues affecting individual freedoms news, Supreme Court Docket Summary By Thomas Goldstein news. and Latinos" than the racial preferences used by most colleges and That means that, even without race-based affirmative action, Boalt The Equal Protection Clause of the 14th Amendment requires that no state “… deny to any person within its jurisdiction the equal protection of the note of their race and then weigh their applications accordingly. 'A 25-Year License to Violate the Constitution' By Reid Alan Cox. 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