OCR Text |
Show HINCKLEY JOURNAL OF POLITICS SPRING 2001 the practice of using race as a "plus" factor is necessary to ensure a diverse student body, which is a "compelling governmental interest." The Gratz district court disagreed with "Hopwood's conclusion that the reticence by a majority of the Bakke Justices to embrace the Powell rationale necessarily implied a rejection of that theory" (Dale 2001, 10). Likewise, the Gratz court majority opinion justified affirmative action in higher education as a "permanent and ongoing interest." This ongoing interest being diversity, the Gratz court stated the following: On the diversity issue, diversity is not a 'remedy.' Therefore, unlike the remedial setting, where the need for remedial action terminates once the effects of past discrimination have been eradicated, the need for diversity lives on perpetually. This does not mean, however, that universities are unrestrained in their use of race in the admissions process, as any use of race must be narrowly tailored. Hopefully, there may come a day when universities are able to achieve the desired diversity without resort[ing] to racial preferences. Such an occurrence, however, would have no effect (sic) on the compelling nature of the diversity interest. Rather, such an occurrence would affect the issue of whether a university's race-conscious admission program remained narrowly tailored. In this Court's opinion, the permanency of such an interest does not remove it from the realm of "compelling interests," but rather, only emphasizes the importance of ensuring that any race-conscious admissions policy that is justified as a means to achieve diversity is narrowly tailored to such an interest (Dale 2001, 10). This opinion clearly illustrates this court's view that using a "plus" factor or positive racial classifications for preferred minority students is not the same as the unconstitutional dual admissions system in the case of Bakke. In addition, the Gratz court's strong support of the diversity rationale focuses the question of preferential treatment upon the diversity justification, rather than the argument of race-based admissions policies as a remedy for past discrimination. Recently, in the case of Greutter v. Bollinger 2001, a federal district court contradicted the Gratz ruling by nullifying a special admissions program for minority law students at the University of Michigan School of Law. Judge Friedman disagreed with Powell's diversity rationale and subsequently Gratz by concluding that diversity was not a compelling state interest. Friedman declared racial classifications to be unconstitutional "unless they are intended to remedy carefully documented effects of past discrimination" (Dale 2001, 12). In addition, the court held that even if diversity were to rise to the status of a "compelling state interest," the University of Michigan School of Law's policy was not sufficiently narrowly tailored. The court found the policy to be too "ill defined" and "amorphous" to allow for "predictable and quantifiable bounds" (Dale 2001, 12). The court also held that the law school's goal of 10-12 percent minority enrollment was in effect a "quota system." Further, the "lack of principled explanation" for giving preference to certain groups resulted in a policy that was not narrowly tailored. Finally, the court was critical of the school's implementation of affirmative action without first expanding recruiting efforts or trying alternatives, such as, a lottery system to combat the problem of low minority enrollment. THE JUDICIAL FUTURE OF AFFIRMATIVE ACTION IN ADMISSIONS DECISIONS The issues surrounding the use of race in admissions decisions reflected in court opinions illustrate the controversy over the two theoretical justifications for preferential treatment. Though nearly all the cases presented in this section agree with the concept of requiring that affirmative action policies demonstrate a "compelling state interest;" the courts are divided as to the standard that either the diversity rationale or remedial justification argument must meet. In addition, public opinion illustrates this same philosophical divide. How does an admissions policy fairly determine applicants who warrant redress from past discrimination? If the policy compensates groups rather than individuals, as an editorial in the Economist argues: Poor Latinos might ask why their children are being held to higher academic standards than the children of black doctors. And a wide array of other groups could legitimately ask why they were being denied the fruits of preferential treatment: Chinese-Americans whose ancestors were treated like chattels; Japanese-Americans, whose ancestors were interned during the second world war; and native Americans whose ancestors were robbed of their land and their dignity (Economist, March 2001). Justice Douglas's separate dissent in DeFunis argued that giving preferences to applicants who were economically disad-vantaged, such as, "a poor Appalachian white or a second-generation Chinese in San Francisco," or other "would-be lawyers with limited backgrounds," was a more constitutional policy than using race or ethnicity (Ball 2000, 45). If affirmative action is used as a method for increasing the opportunity of the disadvantaged, is race a proper determining factor? Affirmative action proponents that contend the policy's goal is increased opportunity for the socioeconomic disadvantaged ignore larger issues of demographics and in particular the untenable implication that poverty plagues only minorities or the converse implication the all minorities are poverty-stricken. ALTERNATIVES TO PREFERENTIAL TREATMENT PERCENTAGE PLANS In November 1999, Florida Governor Jeb Bush unveiled his "One Florida Initiative" ending racial or gender set-asides, preferences, and quotas in state hiring, contracting, and university admissions. The initiative's "Talented 20" plan guarantees Florida high school graduates in the top twenty percent of their classes admission to at least one state school. Bush declared the plan would "further increase minority enrollment in the state university system" (Egalitarian 1999). 15 |