--- Bill Lear <[EMAIL PROTECTED]> wrote: > Does anyone know what arguments in favor of > Affirmative Action are > being presented to the Supreme Court?
In broad outline, yes. The actual nriefs are probable availsble at Findlaw.com, so you could look it up. In 1997 I published a paper in the Ohio State Law J. called "A Not Quite Color-Blind Constitution" that surveyed the law up till then; it's on the web, type in my name (Justin Schwartz) and the title in google. Broadly, the defense will be arguing something like this. The 14th amendmenr prohibits a state from discrimination on the basis of race unless there is a compelling state interest and the discrimination is narrowly tailored to meet that interest. The Supreme Court in _Regents of the U of C v. Bakke_ (1978), or Justice Powell, anyway, held that diversity in higher education is a compelling interest, and so a properly designed affirmative action plan could be narrowly tailored to meet it. Since _Bakke_, there has been a series of S.Ct cases striking down affirmative action and race-conscious programs in contracting (_Adarand_, _Croson_), broadcasting ( _Metro Broadcasting_ [I think!] holding diversity not to be a compelling interest in broadcasting), and voting rediscristing. At the lower court level, these precedents have been applied by the First, Fifth, Eleventh, and probably other circuit courts of appeals to education to invalidate affirmative action plans. The state of Michigan, defending its own plans, will try to distinguish these cases, argue that _Bakke_ is still good law, that higher education is a special context, and that the Court has lots of language saying taht in principle aff action is OK. Also it will argue the facts, that it's necessary to overcome state discrimination in Michigan. > > I was wondering about this: I constantly hear that > we can't have > Affirmative Action because it discriminates. So far that is not the law. Even Justice O'Connor,w ho has written the key cases, has always stated that reverse discrimination may be OK in some circumstances. She has just never found such a circumstances herself. So, I > was wondering if > the solution was ever stated as just a very plain > process of > statistical adjustment. The argument you state below has not been adopted by any court that I know about. It would almost certainly be a loser with the present S.Ct and the law as it stands. In fact the principle that aff action can be usedto make up for "societal" discrimiantion (as opposed to that due to govt action) has been _specifically_ rejected in many recent cases. If accepted, the argument would override the case law outside the education context. It might have played with the pre-Rehnquist Court that had Brennan, Marshall, and Blackmun. Not with this court, not with the case law we now have. Racial preferencials are only goingto be legally justified, if at all, by treating them as one factror among many in a mix of factors that universities look to in promoting diversity. jks, esq. So for example, suppose > that 36% of black > children under the age of 6 grow up in poverty, > versus 11% of white > children (this is indeed approximately the ratio I > remember from the > last Statistical Abstract I looked at). You do the > math, here and all > along the social spectrum, and you simply find a set > of multipliers > for things like GPA and SAT scores. You say: "The > penalty imposed > upon blacks from this area is approximately 1.5 GPA > points, and 475 > SAT points; the penalty imposed upon whites from the > same area is 0.43 > GPA points and 135 SAT points; the penalty imposed > upon Latinos in the > area is 1.25 GPA points and 450 SAT points; the > penalty imposed upon > whites living in Cambridge MA, is 0 GPA and 0 SAT" > (etc., etc.). You > could slice this however you like, aggregating very > broadly or very > narrowly (the latter is better) but the "cost" to > those trampled on by > society can surely be captured (in part) in "hard" > numbers. Has > anyone every done this comprehensively? Does anyone > know if this is > how the problem/solution is stated in legal > argument? I have never > seen the "penalty" aspect of the problem of > discrimination stated in > such plain terms, though I'm sure it has been. > > > Bill > __________________________________________________ Do you Yahoo!? Yahoo! Mail Plus - Powerful. Affordable. Sign up now. http://mailplus.yahoo.com
