AFFIRMATIVE ACTION Employment programs required by federal statutes and regulations designed to remedy discriminatory practices in hiring minority group members; i.e., positive steps des
Trang 1husband and his wife’s relations by blood, or between the wife and the husband’s relations
by blood Secondary affinity is between a spouse and the other spouse’s relatives by marriage
Collateral affinity exists between a spouse and the relatives of the other spouse’s relatives The determination of affinity is important in various legal matters, such as deciding whether to PROSECUTE a person for INCEST or whether to disqualify a juror for bias
AFFIRM
To ratify, establish, or reassert To make a solemn and formal declaration, as a substitute for an oath, that the statements contained in an affidavit are true
or that a witness will tell the truth In the practice of appellate courts, to declare a judgment, decree, or order valid and to concur in its correctness so that it must stand as rendered in the lower court As a matter of pleading, to allege or aver a matter of fact
A judgment, decree, or order that is not affirmed is either remanded (sent back to the lower court with instructions to correct the irregularities noted in the appellate opinion) or reversed (changed by the appellate court so that the decision of the lower court is overturned)
AFFIRMANCE
A declaration by an appellate court that a judgment, order, or decree of a lower court that
has been brought before it for review is valid and will
be upheld
AFFIRMATION
A solemn and formal declaration of the truth of a statement, such as an affidavit or the actual or prospective testimony of a witness or a party that takes the place of an oath An affirmation is also used when a person cannot take an oath because
of religious convictions
AFFIRMATIVE ACTION Employment programs required by federal statutes and regulations designed to remedy discriminatory practices in hiring minority group members; i.e., positive steps designed to eliminate existing and continuing discrimination, to remedy lingering effects of past discrimination, and to create systems and procedures to prevent future discrimination; commonly based on population percentages of minority groups in a particular area Factors considered are race, color, sex, creed, and age The idea of affirmative action was foresha-dowed as early as the Reconstruction Era, which followed theU.S CIVIL WAR When that conflict ended, the former slave population throughout the South owned virtually nothing and had only a limited set of skills with which they could make a living To help these newly emancipated citizens sustain a minimal economic base, the victorious
ILLUSTRATION BY GGS
CREATIVE RESOURCES.
REPRODUCED BY
PERMISSION OF GALE,
A PART OF CENGAGE
LEARNING.
Percentage Distribution of Students Enrolled in Degree-Granting Institutions a , by Race/Ethnicity
Race/ethnicity
0 10 20 30 40 50 60 70 80 90 100
a
Accounts for both two- and four-year institutions.
SOURCE: U.S Department of Education, National Center for Education Statistics, Digest of Education Statistics, 2007.
84.3
White
67.4
9.6 13.3
Black
3.6
Hispanic
11.4
1.8
Asian/Pacific Islander
6.8
1.1
American Indian/Alaska Native 0.7
1976 2006
Trang 2tions of southeastern Georgia that were under his
command and grant to each family of color
“40 acres and a mule.” The proposal ran into
powerful political opposition, however, and it
was never widely adopted
Nearly a century later, this idea of assisting
whole classes of individuals to gain access to the
goods of U.S life reemerged in U.S law and
society through a series of court decisions and
political initiatives interpreting the CIVIL RIGHTS
guarantees within theEQUAL PROTECTIONClause of
theFOURTEENTH AMENDMENT These decisions and
initiatives came to be known as affirmative action
The term itself refers to both mandatory and
voluntary programs intended to affirm the civil
rights of designated classes of individuals by
taking positive action to protect them from, in
the words of Justice William J Brennan Jr.,“the
lingering effects of pervasive discrimination”
(Local 28 of the Sheet Metal Workers’ International
Association v EEOC, 478 U.S 421, 106 S Ct
3019, 92 L Ed 2d 344[1986]) A law school, for
example, might voluntarily take affirmative
action to find and admit qualified students of
color An employer might recruit qualified
women where only men have worked before,
such as businesses that operate heavy equipment
Affirmative action developed during the four
decades following the decision in Brown v Board
of Education, 347 U.S 483, 74 S Ct 686, 98 L
Ed 873 (1954) In Brown, the Supreme Court
held that public schoolSEGREGATION of children
by race denied minority children equal
educa-tional opportunities, rejecting the doctrine of
“separate but equal” in the public education
context During the 1960s and early 1970s, the
CIVIL RIGHTS MOVEMENTas well as theVIETNAM WAR
inspired members of minorities and women to
advocate collectively for increased equality and
opportunity within U.S society These groups
appealed for equal rights under the Fourteenth
Amendment, and they sought opportunity in the
public arenas of education and employment In
many ways, they were successful As affirmative
action grew, however, it drew increasing
criti-cism, often from men and whites, who opposed
what they viewed as“reverse discrimination.”
While the Brown decision declared
segregat-ed schools unlawful, it did not create affirmative
action to remedy discriminatory practices A
decade after Brown, little had changed to
when it mandated, in Green v County School Board, 391 U.S 430, 88 S Ct 1689, 20 L Ed 2d
716 (1968), that positive actions must be taken
to integrate schools There followed the adop-tion of an array of devices such as redistricting, majority-to-minority transfers, school pairings, magnet schools, busing, new construction, and abandonment of all-black schools
The first major legal setback for voluntary affirmation action was the decision in Regents of the University of California v Bakke, 438 U.S 265,
98 S Ct 2733, 57 L Ed 2d 750 (1978), in which the Supreme Court struck down an admissions plan at the University of California, Davis, medical school The plan, which had SET ASIDE
16 places for minority applicants, was challenged
by white applicant Allan Bakke, who had been refused admission even though he had higher test scores than some of the minority applicants
The Court held that by setting aside a specific number, or quota, of places by race, the school had violated Bakke’s civil rights By denying the
“set-aside” practice of an affirmative action plan, the decision seemed to threaten the principle underlying affirmative action as well
The following year, however, the Court found in United Steelworkers v Weber, 443 U.S
193, 99 S Ct 2721, 61 L Ed 2d 480 (1979), that the voluntary plan of Kaiser Aluminum Com-pany to promote some of its black workers into
a special training program ahead of more senior white workers did not violate the latter’s civil rights when it did not involve quotas The Court also found in Local 28 of Sheet Metal Workers’
International Association v EEOC, 478 U.S 421,
106 S Ct 3019, 92 L Ed 2d 344 (1986), that rights were not being violated by a court-ordered membership goal of 29.23 percent minorities Writing for the PLURALITY, Justice Brennan said Title VII of the Civil Rights Act of
1964 does not prohibit courts from ordering
“affirmative race-conscious relief as a remedy for past discrimination” in appropriate circum-stances Such circumstances might include
“where an employer orLABOR UNIONhas engaged
in persistent or egregious DISCRIMINATION, or where necessary to dissipate the lingering effect
of pervasive discrimination.”
The Court later found, in City of Richmond v
J.A Croson Co., 488 U.S 469, 109 S Ct 706, 102
L Ed 2d 854 (1989), that the Minority Business
Trang 3Utilization Plan of Richmond, Virginia, violated the rights of private contractors The plan, which required 30 percent of all subcontracts to be awarded to minority-owned companies, was struck down because this municipality had failed
to show compelling STATE INTEREST for such a measure The Court applied the compelling interest test after holding that race-based action
by state and local government was subject to STRICT SCRUTINY The Court extended this to the federal government in Adarand Constructors, Inc v
Pena, 115 S Ct 2097, 132 L Ed 2d 158 (1995)
In Johnson v Transportation Agency, 480 U.S
616, 107 S Ct 1442, 94 L Ed 2d 615 (1987), the Court ruled that a county agency had not violated
Title VII of the Civil Rights Act when, as part of
an affirmative action plan, it took a female employee’s gender into account in promoting her ahead of a male employee with a slightly higher test score The Court held that a “manifest imbalance” existed in this workforce because of
an underrepresentation of women, and that the employer had acted properly in using a “moder-ate, flexible, case-by-case approach to effecting a gradual improvement in the representation of 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
How Much Affirmative Action Is Enough Affirmative Action?
In the combustive debate over
affirma-tive action, fairness is the hottest issue
of all Most people agree that employers
should hire and promote people fairly
Does affirmative action make this happen?
Americans disagree sharply: A July 1995
Associated Press poll found that
39 percent think it does, but 48 percent
said giving preference to women and
minorities produces even greater
unfair-ness These numbers barely scratch the
surface of the antagonisms in a debate now
more than 30 years old Proponents argue
that the benefits of affirmative action
policies areTANGIBLE, deserved, and
neces-sary Opponents reply that these benefits
hide the real harm done by affirmative
action: rewarding the wrong people,
deva-luing the idea of merit, and punishing
white men The two sides disagree on what
should be done, yet there is no shortage of
ideas In the 1990s a flurry of arguments
came from politicians, academics, CIVIL
aimed at preserving, modifying, or ending
affirmative action
History has drastically rewritten the
terms of this debate In the years of great
advances in federal civil rights, Presidents
could easily frame the issue as a purely
moral one Johnson put it this way in 1965:
Freedom is not enough You
do not take a man who for years has been hobbled by chains, liberate him, bring him to the starting line of a race, saying,“you are free to compete with all the others,” and still justly believe you have been completely fair
Thus it is not enough to open the gates of opportunity
Thirty years later, Senate majority leader Bob Dole (R-Kan.) made this widely quoted attack:“The race-counting game has gone too far.” Polls indicate that both Johnson and Dole spoke for
a majority of citizens of their time
Johnson captured the essence of a nation willing to move beyond the legacy ofJIM
resent-ment of white males who had seen the affirmative action net expand to hold not only minorities but also women and immigrants But white men are hardly the only complainers: According to a March 1995 Washington Post-ABC News poll, 79 percent of middle-class white women oppose preferences for women
For affirmative action’s strongest supporters, explaining the new harshness
in the policy’s politics is a matter of going back to the beginning They point out that affirmative action was never sup-posed to be painless Making room for groups that have historically suffered
that did not suffer—white males—now has to do so This can be characterized as the sins-of-the-fathers argument, illus-trated in a 1995 briefing paper from the
“[W]hile it’s true that white males in any given era may not all have been responsible for excluding people of color and women, all white males have benefited unjustly from that historical exclusion [thus enjoying] privileged status and an unfair advantage.” This position is supported by statistics: in
1995 white males held nearly 95 percent
of senior management positions in major corporations, earned 25 to 45 percent more than women and minori-ties, and held well over 80 percent of the seats in Congress On the other hand, from 1973 to 1993, black poverty increased from 31.4 to 33.1 percent Without doubt, discrimination con-tinues; from the perspective of suppor-ters of affirmative action, the sins of the fathers are far from paid for
Trang 4for compelling social reasons even when that
advancement may infringe in some way upon
the life or liberty of another The continuing
existence of affirmative action laws and
pro-grams suggests that, so far, the Supreme Court’s
answer has been yes
Affirmative action plans may be undertaken
voluntarily, as in the case of a private school’s
admissions goals; imposed by the courts to
protect civil rights; or required by law to qualify
for federal contracts Plans required to qualify
for federal contracts are enforced by the Office
of Federal Contract Compliance Programs
(OFCCP), an agency of the U.S LABOR
DEPART-MENT The OFCCP defines its mission with its
critics in mind: “Affirmative action is not preferential treatment Nor does it mean that unqualified persons should be hired or
promot-ed over other people What affirmative action does mean is that positive steps must be taken
to provide equal employment opportunity”
(EEOC, U.S Labor Department, Pub
No 2850, Making EEO and Affirmative Action Work 8 [1993]) One ranking OFCCP adminis-trator defended the program even more sharply
by saying,“Affirmative action is not about goals and has nothing to do with preferences It is about inclusion versus exclusion: people who have been excluded from participation in the process for years are now to be included.”
beneficiaries of affirmative action,
sup-porters dismiss attacks on the policies as
part of a backlash Three decades of
advances for affirmative action’s
bene-ficiaries have meant diminished
domi-nance for white men, a group whose
income has been falling in real terms
since 1973 But, supporters say, the
reason white men earn less today than
their fathers did is not the fault of
affirmative action They point to
long-term changes in the U.S economy and
job market as the real explanations for
stagnating incomes, diminishing buying
power, and decreasing job security Yet
affirmative action gets the blame “We
are the ultimate scapegoat for whatever
goes wrong,” Mary Frances Berry,
chair-woman of the U.S COMMISSION ON CIVIL
Dwindling support from middle-class
white women also draws the ire of
affirmative action’s advocates “In the
1970s and 80s, white women had no
problem hitching up to the affirmative
action banner of ‘women and
min-orities,’” journalist Derrick Z Jackson
wrote.“If they now want to rip down the
banner, it will confirm the dirtiest little
secret of all about affirmative action”—
that white women supported it only to
the extent that it benefited themselves
Dismissing these explanations as
excuses, critics of affirmative action
de-nounce it as“reverse discrimination.” They
either reject outright the idea that historical
porary means, or believe that the cost to those who must pay for such redress is too high Conservative think tanks such as the Institute for Justice and the HERITAGE
the attack Clint Bolick, the Institute for Justice’s vice president, told Congressional Quarterly, “If you add up the number of people who have encountered reverse discrimination in college admissions, scho-larships, public school magnet programs, government contracts and jobs in the private and public sectors, you have a pretty sizable population.” The charge strikes the strongest advocates of affirma-tive action as insupportable According to the research of law professor Alfred Blumrosen, of Rutgers University, only a few dozen such cases reached the federal courts in the early 1990s, and in most, the
reverse discrimination argument as sour grapes; the ACLU goes so far as to call it a smoke screen“for retention of white male privilege.”
Critics frequently argue that affirma-tive action does an injustice to the idea of merit Organizations representing police officers and firefighters, such as the national Fraternal Order of Police, com-plain that qualifications and standards have fallen to accommodate affirmative action candidates This criticism is popular not only with whites, who have long claimed that better qualified candidates lose out as a result of affirmative action, but also with
critics.“What we’ve had to do for 25 years
to pull off affirmative action,” the author Shelby Steele said,“is demean the idea of merit.” The economist Thomas Sowell advances much the same argument in his claim that the policy hurts African Amer-icans Like other conservatives, Sowell ties the rise of affirmative action in the 1970s to the development of the black economic underclass Steele and Sowell have argued that affirmative action sets up its benefici-aries for failure, corrupting the value of achievement for blacks and reinforcing racist stereotypes for whites Viewing affirmative action as antidemocratic, they conclude that individual qualities alone should determine who is hired or accepted into an academic program
Advocates are highly suspicious of the merit argument In the first place, they deny that creating opportunities ignores the value of personal merit Voluntary affirmative action merely gives people who traditionally have been excluded a leg up, they assert; and when
it is court ordered to redress a pattern of workplace discrimination, the question
of merit misses the point More crucially, supporters think the merit line is super-ficial Political commentator Michael E Kinsley quipped that critics “seem to imagine that everyone in America can be ranked with scientific precision, from
No 1 to No 260,000,000, in terms of his
or her qualification for any desirable career opportunity.” He and other
Trang 5Affirmation action plans are subject to mandatory compliance procedures, which may include monitoring by review, conciliation of disputes, exclusion from federal contract work,
or even suit by theDEPARTMENT OF JUSTICE Criticism of affirmative action has been constant since the Supreme Court first articu-lated its views By the 1990s, opponents began
to press the Court to reverse its precedents both
in employment and in higher education admis-sion policies Supporters of affirmative action openly worried that the Court would severely restrict affirmative action For example, in 1997,
the Court was scheduled to hear an appeal involving a New Jersey schoolteacher who claimed she had suffered discrimination because
of an improper affirmative action plan (Taxman
v Piscataway Township Board of Education, 91 F.3d 1547 [3d Cir 1996]) Weeks before oral argument, supporters of affirmative action made the schoolteacher a financial SETTLEMENT
in return for her dismissing the case They admitted that this was hardly a victory, but supporters pointed to troubling developments One of these developments was the Supreme Court’s refusal to review a decision that struck
supporters consider the argument
spe-cious in a society in which merit is often
the last reason for success and other
variables that give advantages to certain
groups are deemed perfectly natural—the
children of the rich attend the best schools
regardless of their abilities, for example,
and military veterans receive preferences
whether or not they have personally
sacrificed anything for the nation The
United States was never a meritocracy,
asserts Laura Murphy Lee, director of the
ACLU’s national legislative office:
“Affir-mative action didn’t come along to taint a
process that never existed.”
Proposals for reforming affirmative
action became increasingly popular in the
mid-1990s At one extreme, politicians
have called for dumping it altogether This
idea has been urged in Congress chiefly by
ultraconservative Republicans such as
Senators Phil Gramm (R-Tex.) andJESSE
has been taken on the congressional
level, similar proposals in the states of
California and Florida have gained
ground California reformers scored two
victories in the mid-1990’s: First, in 1995,
regents of the University of California,
Regents of Univ of Cal v Bakke, 438 U.S
265, 98 S Ct 2733, 57 L Ed 2d 750
(1980) dropped gender- and race-based admissions, hiring, and contracting
Then, reformers succeeded in passing an anti-affirmative action referendum—the California Civil Rights Initiative, a mea-sure that would outlaw gender- and race-based preferences in government programs—in 1996 A similarREFERENDUM
passed in Washington State in 1998
Less radical and perhaps more polit-ically feasible, another proposal calls for preserving affirmative action while shift-ing its emphasis The idea would aban-don race and gender as yardsticks and match preferences solely with economic need Conservatives again lead this campaign, but it draws some support even from moderates: President BILL
was against quotas and guaranteed results, ordered a review of federal employment policies in 1995 to ensure that they were being applied fairly
Critics of affirmative action believe that this kind of reform would ensure oppor-tunity for disadvantaged people while ending what they see as egregious abuses, such as the awarding of contracts to rich minority-owned businesses Traditional supporters agree that affirmative action benefits do not always help the people who
most need them But they believe that substantial gains should not be reversed, and that any need-based measurement should only augment—not replace— existing policies
The journey of affirmative action from its heyday to the present reflects great changes in the United States Between the administration of President Johnson and the Republican-controlled Congress elected in 1994 lies a thirty-year experience with GREAT SOCIETYinitiatives that has left many citizens soured on the idea of government assistance Radical changes in the nation’s economy and workforce have surely not made the journey any easier Bridging this gap seems unlikely, given the vastly different history of white males on the one hand, and women and people of color on the other From these two poles of experi-ence, two opposing ideas of necessity emerge Critics say the time is ripe to overhaul affirmative action, a well-inten-tioned policy gone bad Supporters, perceiving a playing field that is still far from level, maintain that the real work of affirmative action has scarcely begun
In the early 2000s, the battlefield for affirmative action has shifted from
How Much Affirmative Action Is Enough Affirmative Action?
(Continued)
Trang 6down a university admission plan that used race
as one factor for acceptance In Hopwood v
Texas, 78 F 3d 932 (5th Cir 1996), the U.S
Court of Appeals for the Fifth Circuit ruled that
the practice of providing preferential treatment
to minorities in a public university’s admissions
policy was repugnant to the Constitution
The University of Texas Law School
imple-mented an admissions policy in which the
standards for admission were lowered for
minori-ties The school employed an index (called the
Texas Index, or TI) that combined standardized
test scores with grade-point averages A minimum
score for acceptance was ten points higher for
whites than for non-whites The appeals court
found problems with the structure of the TI
While minorities, specifically African Americans and Mexican Americans, earned scores sufficient
to be categorized as“presumptive admits” (i.e.,-certain to be accepted), whites who received the same scores were categorized as “presumptive denials” (i.e., certain to be rejected) The court invalidated the admissions policy, concluding that using race as a criteria for admissions is as arbitrary
as using one’s blood type
In Grutter v Bollinger, 539 U.S 306, 123
S Ct 2325, 156 L.Ed.2d 304, the U.S Supreme Court narrowly endorsed the use of race in choosing students for America’s top universities and the concept of racial diversity as a
education—the arena that gave birth to
Bakke, the first significant Supreme Court
decision endorsing affirmative action—has
more recently produced a mishmash of
court decisions and laws that have called
into question the future of affirmative
action There were arguments not just how
Bakke should be applied, but whether it
should be applied at all
Higher education has been a
partic-ularly contentious area on affirmative
action for many reasons Because many
higher education institutions are public,
there is an issue of whether taxpayer
money should be going to institutions
supporting affirmative action The public
status of colleges and universities also
ensures that affirmative action debates
will be conducted out in the open Also,
the quality and prestige of a college or
university is often seen as determining
where someone will end up on the
socioeconomic scale after graduation,
making the affirmative action stakes at
such institutions high
In a reversal of the way they tolerated
discrimination through most of the
twen-tieth century, many colleges and
universi-ties now seem anxious to employ
affirma-tive action to increase the diversity of their
campuses Court cases litigating
affirma-tive action in higher education are
brought by disgruntled white students
and parents claiming“reverse
discrimina-tion” It has been the courts and the
universities, that have shown willingness
to put the brakes on affirmative action
The battle over Bakke and its effects
on higher education swung into focus in
1996, when the 5th CIRCUIT COURT of Appeals struck down affirmative action
in college admissions in their decision Hopwood v Texas, 78 F.3d 932, 5th Cir
(Tex 1996) The decision covered insti-tutions in the states of Texas, Louisiana, and Mississippi Within a year of that ruling, enrollments by minorities in higher education institutions dropped in all three states
In response, the state of Texas guaranteed a place in a state university
or college to anyone who had graduated
in the top 10 percent of their class This gave more minorities a chance, and as a result minority enrollment at higher education institutions in the state was higher in 2001 than it was in the year before Hopwood Several other states, including California and Florida, have adopted versions of Texas’ “10 percent”
solution Critics have charged that these programs are inadequate, failing to ensure that minorities are represented
at the most prestigious institutions even when they do boost enrollment in state university systems overall
The affirmative action focus in higher education has shifted over to the University of Michigan White applicants
to both the undergraduate school and the
sued on reverse discrimination grounds One U.S district judge in Michigan upheld the undergraduate program, and another struck down the law school program A divided Sixth Circuit Court
of Appeals ruled in favor of the program
in Grutter v Bollinger, 288 F.3d 732, 6th Cir (Mich 2002) and the U.S Supreme Court agreed to hear the appeal of that decision The Court upheld its decision
in 2003
The administration ofGEORGE W.BUSH
filed a brief opposing Michigan’s affir-mative action program “The method used by the University of Michigan to achieve this important goal is fundamen-tally flawed,” said President Bush in statement Defending the policy, Michigan President Mary Sue Coleman said the President “misunderstands how our ad-mission process works” and denied it was unconstitutional Who the Supreme Court decides is right may decide the future of affirmative action in America
FURTHER READINGS Buchanan, Sidney 2002 “Affirmative Action: The Many Shades of Justice ” Houston Law Review 39 (summer).
“Coloring the Campus.” 2001 Time Magazine (September 17).
Goldstein, Amy, and Dana Milbank 2003.
“Bush Joins Admissions Case Fight; U-Mich Use of Race Is Called ‘Divisive’.” Washington Post (January 16).
Trang 7compelling governmental interest In aLANDMARK decision with wide-ranging implications for affirmative action programs across the United States, the Court ruled that it does not violate the Equal Protection Clause to give some preferential treatment to disadvantaged minorities, calling the diversity that minorities bring to education, business, and the military necessary for the cultivation of“a set of leaders with legitimacy in the eyes of the citizenry.” In that case, the Court held that promoting racial diversity on campuses not only serves a compelling government inter-est, but also that the law school’s admissions program was narrowly tailored and focused on each applicant as an individual as opposed to being a member of a particular racial group
However, the victory for affirmative action was conditional, as the Court emphasized that racial preferences should be a temporary, rather than permanent, fixture in American society, and called for“periodic reviews” and “sunset provi-sions” for race-conscious admissions
In the 5–4 decision, written by Justice Sandra Day O’Connor and joined by joined by Justices JOHN PAUL STEVENS, DAVID SOUTER, RUTH BADER GINSBURG, and STEPHEN BREYER, the Court ruled that attaining a diverse student body is at the heart of a law school’s proper institutional mission, and that GOOD FAITH on the part of a university in pursuing diversity should be presumed absent a showing to the contrary
The Supreme Court emphasized that the law school sought to enroll a “critical mass” of minority students, not simply to ensure that its student body had some specified percentage of a particular group In concluding that the law school’s admissions policy was narrowly tailored, the Supreme Court stated that the policy did not operate as a quota, but used race as a“plus” factor, such that the policy was flexible enough to ensure that each applicant was evaluated as an individual
ThePLAINTIFFwas a white Michigan resident whose application was rejected by the law school She alleged that her application was denied because the law school used race as a
“predominant factor.” A district court agreed with the plaintiff, but the U.S Court of Appeals for the Sixth Circuit reversed
In Gratz v Bollinger, a separate 6–3 decision handed down the same day as Grutter v Bollinger, the Court struck down a separate University of Michigan undergraduate-admissions process based on a point system that rated students and
awarded additional points to minorities Because the admissions process made race a “decisive” factor, rather than just one of many in determin-ing who was admitted, the Court ruled that the formulaic approach was unconstitutional Gratz
v Bollinger, 539 U.S 244, 123 S Ct 2411, 156 L Ed.2d 257 The opinion was delivered by Chief Justice WILLIAM REHNQUIST, who was joined by Justices O’Connor, ANTONIN SCALIA, ANTHONY KENNEDY, andCLARENCE THOMAS
This point-system ruling is expected to force state schools that use similar numerical meth-ods to revise them, and it could cause compa-nies to rethink their reliance on quantitative evaluations of job applicants and employees Although Michigan is a public university, the decision is considered likely to apply to selective private universities as well, because they receive government funding It also will affect admis-sions practices at selective public high schools where affirmative action has also been
eliminat-ed or curtaileliminat-ed
Distaste for affirmative action also led opponents to attack the policy at the state level through ballot initiatives and referendums In November 1998 the California electorate passed Proposition 209 (54 to 46 percent), which banned many of the affirmative action programs
in California TheREFERENDUMwas promoted by the nonprofit Center for Individual Rights, which was also instrumental in building opposition to the University of Texas admissions policy that was struck down in Hopwood The proposition has remained a controversial topic, with suppor-ters arguing that state and local officials have avoided dismantling affirmative action These same supporters continue to call on state officials
to enforce the law Officials, however, have pointed out that under the proposition, when federal laws mandate affirmative action to qualify for federal monies, the state law must give way
In 1998 Washington State passed Initiative
200 and became the second state to abolish state affirmative action measures The initiative is similar to that of California’s Proposition 209
In 2000 Florida became the first state to voluntarily end affirmative action in higher education and state contracts Public universi-ties put into place new college admissions policies that prohibit affirmative action One new component was the Talented 20 Plan, which mandates that students who graduate in the top 20 percent of their class and who
Trang 8ties These changes were designed to increase
opportunity and diversity while ending racial
preferences and set-asides
On June 28, 2007, the Supreme Court issued
a landmark decision in two joined cases
involving race and public school systems In
Meredith v Jefferson County Board of Education,
and Parents Involved in Community Schools v
Seattle School District No 1, the Court ruled that
race cannot be a factor in assigning children to a
particular public school In both cases, the
school districts used race as the primary factor
in determining which school the students would
attend in order to maintain some level of racial
integration in the school districts Chief Justice
JOHN ROBERTS, writing for the majority, argued
that racial integration does not justify assigning
students to a school based on the racial category
under which they fall He further stated that“the
way to stop discrimination on the basis of race is
to stop discriminating on the basis of race.”
The fate of affirmative action in this country
is unclear In November 2008 two states,
Nebraska and Colorado, had ballot measures
proposing to ban affirmative action preferences
by public entities The ban passed in Nebraska
with more than 50 percent of the vote, whereas
Colorado voters rejected the ban
FURTHER READINGS
“Affirmative Action.” 1995 CQ Researcher April 28.
American Civil Liberties Union 1995 Affirmative Action.
Briefing paper no 17, March 22.
American Civil Liberties Union 1995 The Case for
Affirmative Action July 1.
Clinton, President Bill 1995 Speech at the National
Archives, July 31.
Coyle, Marcia 2003 “The Fallout Begins: In Its Final Week
of the Term, the Supreme Court Hands Down
Landmark Rulings That Give Legal Backing to Two
Kinds of Diversity; Affirmative Action and Gay Rights ”
The National Law Journal 25 (July 7).
Curry, George E., and Cornel West, eds 1996 The
Affirmative Action Debate New York: Perseus.
Landsberg, Brian K 2003 “Affirmative-Action Decision
Indicated Shifts in Position ” The Los Angeles Daily
Journal 116 (June 30).
Marin, Patricia, and Catherine L Horn, eds 2008 Realizing
Bakke’s Legacy: Affirmative Action, Equal Opportunity, and
Access to Higher Education Sterling, VA: Stylus Publishing.
Rubio, Philip F 2001 A History of Affirmative Action, 1619–
2000 Oxford: University Press of Mississippi.
Schmidt, Peter “Supreme Court Leaves Affirmative-Action
Precedents Intact in Striking Down School-Integration
Plans ” The Chronicle of Higher Education Available
online at http://chronicle.com/cgi2-bin/printable.cgi?
July 7, 2009).
Mears, Bill “Divided Court rejects school diversity plans.”
Available online at http://cnn.com/2007/LAW/06/28/
scouts.race/index.html (accessed July 7, 2009).
Brunner, Borga “Timeline of Affirmative Action Mile-stones.” Available online at http://www.infoplease.com/
spot/affirmativetimeline1.html; website home page:
http://www.infoplease.com (accessed July 7, 2009).
CROSS REFERENCES Civil Rights Acts; Equal Employment Opportunity Com-mission; Seniority; Sex Discrimination.
AFFIRMATIVE DEFENSE
A new fact or set of facts that operates to defeat
a claim even if the facts supporting that claim are true
APLAINTIFFsets forth a claim in aCIVIL ACTION
by making statements in the document called the complaint These statements must be sufficient
to warrant relief from the court TheDEFENDANT responds to the plaintiff’s claims by preparing an answer in which the defendant may deny the truth
of the plaintiff’s allegations or assert that there are additional facts that constitute a defense to the plaintiff’s action For example, a plaintiff may demand compensation for damage done to his or her vehicle in an automobile accident Without denying responsibility for the accident, the defen-dant may claim to have an affirmative defense, such as the plaintiff’s contributory NEGLIGENCEor expiration of theSTATUTE OF LIMITATIONS
An affirmative defense is also allowed under rules of CRIMINAL PROCEDURE For example, a defendant accused ofASSAULTmay claim to have been intoxicated or insane, to have struck out in SELF-DEFENSE, or to have had an alibi for the night
in question Any one of these affirmative defenses must be asserted by showing that there are facts in addition to the ones in the INDICTMENT or information charging the defen-dant and that those additional facts are legally sufficient to excuse the defendant
The rules that govern pleading in most courts require a defendant to raise all affirma-tive defenses when first responding to the civil claim or criminal charges against him or her
Failure to do so may preclude assertion of that kind of defense later in the trial
AFFRAY
A criminal offense generally defined as the fighting
of two or more persons in a public place that disturbs others
Trang 9The offense originated under the COMMON LAW and in some jurisdictions has become a statutory crime Although an agreement to fight
is not an element of the crime under the common-law definition, some statutes provide that an affray can occur only when two or more persons agree to fight in a public place
An affray is a type of DISORDERLY CONDUCT and aBREACH OF THE PEACEsince it is conduct that disturbs the peace of the community It is punishable by a fine, IMPRISONMENT, or both
AFORESAID Before, already said, referred to, or recited
This term is used frequently in deeds, leases, and contracts of sale of real property to refer to the property without describing it in detail each time it is mentioned; for example, “the aforesaid premises.”
AFORETHOUGHT
In criminal law, intentional, deliberate, planned,
or premeditated
MURDER in the first degree, for example, requiresMALICE AFORETHOUGHT; that is, the murder must have been planned for a period of time, regardless how short, before it was committed
AFTER-ACQUIRED PROPERTY CLAUSE
A phrase in a mortgage (an interest in land that furnishes security for payment of a debt or performance of an obligation) that provides that any holdings obtained by the borrower subsequent to
the date of the loan and mortgage will automatically constitute additional security for the loan
AFTER-ACQUIRED TITLE
A legal doctrine under which, if a grantor conveys what is mistakenly believed to be good title to land that
he or she did not own, and the grantor later acquires that title, it vests automatically in the grantee AFTER-BORN CHILD
A child born after a will has been executed by either parent or after the time in which a class gift made according to a trust arrangement expires The existence of an after-born child has significant legal ramifications upon gifts made under wills and trusts Under the law of wills, the birth of an after-born child after the parent makes
a will does not revoke it but has the effect of modifying its provisions Generally, the after-born child must be given the share of the parent’s estate that the child would have been entitled to if the parent had died without leaving a will, according to the law ofDESCENT AND DISTRIBUTION The beneficiaries of the will must contribute a proportionate share of what they inherited to make up the after-born child’s share
Under the law of trusts, a gift to a class is one in which the creator of the trust, the SETTLOR, directs that the principal of the trust should be distributed to a specifically designated group of persons, such as to grandchildren, who are alive at a certain time, such as at the settlor’s death Any child born after this time would not
be entitled to a proportionate share of the trust
An example of how
an after-acquired
property clause might
be used
ILLUSTRATION BY GGS
CREATIVE RESOURCES.
REPRODUCED BY
PERMISSION OF GALE,
A PART OF CENGAGE
LEARNING.
Security Agreement with an After-Acquired Property Clause
This Security Agreement is made on this day of _ , 20 _
between _ , _ , _
[name and address of the debtor] ("Debtor"), and _ , _ ,
[name and address of secured party] ("Secured Party").
1 SECURITY INTEREST Debtor grants to Secured Party a security interest in all inventory, equipment, appliances, furnishings, and
fixtures placed upon the premises known as , located at ,
(the "Premises") or used in connection therewith and in which Debtor now has or hereafter acquires any right and the proceeds therefrom The security interest of Secured Party extends to all collateral of the kind which is the subject of this agreement which the debtor may acquire at any time during the continuation of this agreement The Security Interest shall
secure the payment and performance of Debtor's promissory note of even date herewith in the principal amount of _
[amount of payment] Dollars and the payment and performance of all liabilities and obligations of Debtor to Secured Party of every kind and
description, direct or indirect, absolute or contingent, due or to become due now existing or hereafter arising.
[Portions omitted for purposes of illustration]
Trang 10after the settlor’s death, therefore, would not
share in the principal, since the class had closed
nine months after the settlor’s death
AGE DISCRIMINATION
Prejudicial treatment or denial of rights based
on age
As the baby boom generation, the largest
demographic group in U.S history, reached
middle age and looked toward retirement, laws
governing the treatment of older U.S citizens
took on greater importance than ever before
Between 1970 and 1991, the number of workers
over the age of 40 in the U.S workforce rose
from 39,689,000 to 53,940,000 It is no surprise,
then, that major developments, both legislative
and judicial, occurred in the area of age
discrimination in employment
Congress outlawed DISCRIMINATION by
employers against employees or applicants over
the age of 40, with the Age Discrimination in
Employment Act of 1967 (ADEA) (29 U.S.C.A §
621 et seq.) Amendments to the act in 1974,
1978, and 1986 (29 U.S.C.A § 623 et seq.) raised
and then eliminated the mandatory retirement
age for most workers and extended the act’s
coverage to most employers The ADEA does
bona fide occupational qualification (BFOQ) and
is reasonably necessary for the operation of the business Although the ADEA did not originally apply to government employers, Congress ex-tended the act to cover federal, state, and local governments in 1974 However, it no longer applies to state governments
The EQUAL EMPLOYMENT OPPORTUNITY COMMIS-SION (EEOC) is charged with enforcing the ADEA Complainants must first file a claim with the EEOC or their state’s employment orHUMAN RIGHTS commission before pursuing a lawsuit
The EEOC attempts to resolve the dispute through voluntary compliance on the part of the employer, conciliation, or other persuasive measures If the EEOC decides to bring an action against the employer, the employee’s right to sue
is extinguished However, the employee need not exhaust his or her administrative remedies—that
is, wait for a final determination from the EEOC—before filing suit In fact, on February
27, 2008, the Supreme Court in Federal Express Corp v Holowecki, 552 U.S _, 128 S Ct 1147, addressed the issue of whether the intake questionnaire, or the specific complaint form that aggrieved employees are required to file with the EEOC prior to filing a lawsuit against their
Employers may not require the retirement
of a worker unless they can demonstrate that the employee’s age is relevant to the operation of the business.
AP IMAGES