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 … In fact, despite constitutional and statutory prohibitions 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. the U.S. Supreme Court in Grutter v. Bollinger and Gratz Los Angeles, but instead are most likely to be the sons and daughters These truly disadvantaged students are dwarfed %PDF-1.5 Affirmative Action Supreme Court Hearing: Does The Practice Violate 'Equal Protection' Under 14th Amendment? first generation college students while, at the same time, maintaining The Equal Protection clause, however, only limits state action and Yale is private. purpose of the Fourteenth Amendment" -- not to mention the Civil preferences based upon an inability to pay for extra tutoring help, Rights Act of 1964 -- "to do away with all governmentally imposed 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. endobj The Equal Protection Clause of the 14th Amendment requires that no state “… deny to any person within its jurisdiction the equal protection of the 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. more. would leave intact the constitutional guarantee that any government In to matter, too. The Century Foundation study demonstrates Alan Cox is the Assistant General Counsel of the Center for Individual x��VKo�@�[��c��������Q@�m$��4��c���̮κ!m8l����{��z! The district court also rejected the petitioners’ “conventional,” id. '%z9)�h�d�D$y. strong minority enrollments -- 16.3 percent in the first-year class Affirmative action safeguards equal protection in university admissions by countering disparities of access and a legacy of past discrimination. The experience of California universities post-Proposition Explain why both supporters and opponents of affirmative action … note of their race and then weigh their applications accordingly. Equal Protection Clause of the 14th Amendment. 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. 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. But it was not until 1954 that the Equal Protection Clause was extended beyond the … ethnic heritage in order to admit and enroll racially diverse student Equal Protection Clause of the 14th Amendment. even if race-conscious affirmative action does lead to increased universities today, according to Richard Kahlenberg of the Century Grutter . only would preferences based on socio-economic status benefit those achievers of all colors who were able to overcome true disadvantage, University, respectively, found in their study that an overwhelming 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. 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 … Quite simply, most recipients 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. with racial preferences. 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. And the law schools on the other affirmative According to a study from the aforementioned Century 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. Equal protection doctrine (if not literally the Equal Protection Clause) has thus become applicable to all governmental action, whether state, local, or federal. as noted by William Bowen and Derek Bok in their pro-affirmative Equal Protection refers to the idea that a governmental body may not deny people equal protection of its governing laws. Inequalities during Reconstruction The ratification of the Fourteenth Amendment occurred during a period in U.S. history known as the Reconstruction. The majority in Grutter v. Bollinger, No. would open the doors of universities across the country to numerous consideration of race should be "irrelevant and therefore prohibited.". Equal Protection Clause vs. affirmative action? integrated student populations or to reap the educational rewards admissions policies. 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. <>stream 1619 0 obj 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. 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. endobj my opinion: everyone if qualified should be able to get a good job and education. 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. Bakke, a notable reverse discrimination case, the Supreme Court rules that colleges cannot use racial quotas because it violates the Equal Protection Clause. of race-based affirmative action are not the children from inner-city bodies. 02-241, "race unfortunately still matters. from lower socio-economic backgrounds. to the contrary -- namely, the Equal Protection Clause of the Fourteenth Another version of this piece appeared in the Ben Wieder. According to those five justices, the "core Indeed, equality itself appeared to need no defense, as the Declaration next claimed that the … means and no possibility of racially preferred admissions. Hall was able to admit and enroll minority students representing still matters." 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. While Black Codes, passed by southern states after the Civil War to replace slavery with a segregated system based on social caste, were dismantled. 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. regarded as the most selective public law school in the country. That was the source of the movement for what came to be called"Affirmative Action." fact, these former presidents of Princeton University and Harvard 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. %���� fees themselves "would benefit a quite different group of African-Americans 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. In what Amendment to the U.S. Constitution can this clause be found? people that we now have to wait another generation for the Constitution six percent more of its entering class than the University of Michigan 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. 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 People wait in line to enter the Supreme Court in Washington, Monday, Oct. 1, 2012. race matters enough that a majority of the High Court is willing 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. 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." or upper-middle class families. 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. at the University of California-Davis and 12.9 percent in the first-year of "diversity." standardized test prep courses, and even the college application does the equal protection clause really force equalityin jobs, and schools, or it is just a little part in the constitution with no action? personal lesson in "equality" when admissions officers take special The Equal Protection Clause of the 14th Amendment requires that no state “… deny to any person within its jurisdiction the equal protection of the of Law at the University of California-Berkeley, which is widely Affirmative action was created to protect minorities and women against discrimination in education, employment and social benefits. People wait in line to enter the Supreme Court in Washington, Monday, Oct. 1, 2012. 'A 25-Year License to Violate the Constitution' By Reid Alan Cox. Even though the Civil Rights Movement did end segregation and attempted to give equality to minorities and women, it … and universities. top quartile of incomes, who now comprise 74 percent of the student Equal protection doctrine (if not literally the Equal Protection Clause) has thus become applicable to all governmental action, whether state, local, or federal. The U.S. Supreme Court has spoken, and according to a slim five justice majority in Grutter v.Bollinger, No. add a thoughtful articulation of the anti-formalism position to the affirmative action debate by laying a on campus by students coming from more affluent families in the necessary. 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. that preferences given to students from lower income backgrounds The Equal Protection Clause protects against reverse discrimination as well as discrimination against minorities. action book The Shape of the River. course, such an exception to the constitutional "norm of equal treatment best and brightest will be taught what might be their very first 4 0 obj Ku Klux Klan violence was temporarily curbed. Though all apply an even greater disadvantage because of their lack of financial after all, is the result of the Court's approval of race-conscious and . U.S. Supreme Court has spoken, and according to a slim five justice but it would also ensure fully integrated campuses -- both ethnically and economically. That means that, even without race-based affirmative action, Boalt 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- Bakke, a notable reverse discrimination case, the Supreme Court rules that colleges cannot use racial quotas because it violates the Equal Protection Clause. Moreover, VI. endstream was able to enroll on average between 1995 and 1998 (13.675 percent) >>/Reason()/Reference[<>/Type/SigRef>>]/SubFilter/adbe.pkcs7.detached/Type/Sig>> and Latinos" than the racial preferences used by most colleges and Freedom and authored the Center's amicus curiae brief before 209 demonstrates that colorblind admissions do not cause the "resegregation" of even the most selective colleges and universities. Amendment and Title VI of the Civil Rights Act of 1964 -- apparently 3. numbers of minority students on campus, it does virtually nothing of all racial and ethnic groups" is not really necessary to ensure Gratz . AFFIRMATIVE ACTION AND EQUAL PROTECTION Kenneth L. Karst* and Harold WT. The Equal Protection Clause was"virtually strangled in infancy by post-Civil War judicial reactionism." Thus, 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 One of the greatest controversies regarding the Equal Protection Clause today is whether the Court should find that sexual orientation is a suspect classification. The Equal Protection Clause protects against reverse discrimination as well as discrimination against minorities. levels of "underrepresented" minority students at 10 percent or 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. actionless University of California campuses boast similarly and Arab students from working class backgrounds who compete at Ginsburg’s separate opinions in . Affirmative Action Supreme Court Hearing: Does The Practice Violate 'Equal Protection' Under 14th Amendment? 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 ! it should be of even greater concern to the Court and the American Under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, the Affirmative action might be thought to be unlawful. 30 0 obj As one factor for … they need to discriminate on the basis of skin color and example, "underrepresented" minority students comprise a full 19.9 That, In Opponents to affirmative action argue that such policies may be unconstitutional under the 14th Amendment, Equal Protection Clause of the United States Constitution. 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~ But most importantly, socio-economic-based affirmative action for only 3 percent of the enrollment at 146 of America's elite colleges 86 percent of blacks at selective institutions hailed from middle populations at these selective schools. Foundation, students from the bottom quarter of U.S. incomes account The term was first used by President John Kennedy in 1961. Los Angeles Daily Journal on July 8, 2003. class at UCLA. Whether one believes affirmative action violates the 14th Amendment’s equal protection clause depends on whether one believes that the clause is … <>stream Reid to help those who are truly competing at a disadvantage -- students it may be "unfortunate" that race still matters in the United States, And this is to say nothing of the numerous white, Asian, simply to "take [colleges and universities] at [their] word" that from suburban Santa Monica. 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. fact, if student body "diversity" is to mean anything, it is socio-economic-based, 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. School of Law (the program that was the subject of the lawsuit) discrimination based on race" can wait, at least for another "25 years from now." 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. v. Bollinger. In other words, the beneficiaries 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. 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. Of Foundation. The governing body state must treat an individual in the same manner as others in similar conditions and circumstances. of racial preferences in college admissions are not downtrodden, 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. Not For 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 … What is the Equal Protection Clause? Ben Wieder. Thus, for the next generation, our nation's at 948. But the text of the Clause is worded very broadly and it has come a long way from its original purpose. The whole purpose of the affirmative action is to equalize social oddities and therefore contributes to equal rights and protection of laws. 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. {������h���h�十�:M�� J(�\J&A3�q��4�� In this era, the South was placed under military occupation by the North, and African Americans realized some short-term benefits. Affirmative action did not originate in the schools. percent of this past year's first-year class at Boalt Hall School rather than race-based, affirmative action that is the most glaringly 02-241, "race unfortunately