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Justice Charles LAWRENCE delivered the opinion of the Court.1
Plaintiffs Parents Involved in Community Schools (“Plaintiffs”) brought suit against Seattle School District No. 1 (“Defendant”); challenging an assignment plan that relied in part on racial “tiebreakers” to assign slots in oversubscribed high schools. In a separate action, McFarland v. Jefferson County Public Schools, parent and student plaintiffs challenged a school district’s race-conscious student assignment plan. In the Seattle case, the District Court granted the school district summary judgment, finding, inter alia, that its plan survived strict scrutiny on the federal constitutional claim because it was narrowly tailored to serve a compelling government interest. The Ninth Circuit affirmed. In the Jefferson County case, the District Court found that the school district had asserted a compelling interest in maintaining racially diverse schools, and that its plan was, in all relevant respects, narrowly tailored to serve that interest. The Sixth Circuit affirmed.
Mr. Justice HARRIS announced the judgment of the Court.1
This case presents a challenge by the Respondent, Allan Bakke, to the Task Force Program of the Petitioner, the Medical School of the University of California at Davis (Davis). The Task Force Program was designed to open the admissions process to students of color who throughout its history the Medical School had largely excluded. The Superior Court of California, California’s trial court, sustained Bakke’s challenge, holding that Davis’ program had violated the California Constitution, Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq., and the Equal Protection Clause of the Fourteenth Amendment. It enjoined Davis from considering Bakke’s race or the race of any other applicant.
One of the central themes of Democracy in America is the dawning tide of democratic equality. In Tocqueville’s view, this equality – understood as uniformity – represents the future of modern democratic society. Rogers M. Smith argues in this chapter that, even though Tocqueville’s assessment of America as a world of democratic equality may be unreliable, his reckoning with these issues nonetheless proves instructive for how we confront challenges of diversity and inequality. Tocqueville’s worries concerned excessive equality and uniformity, but today’s dilemmas increasingly involve inequality and differential treatment. Rather than treating everyone equally, in what Smith calls a “post-Tocquevillean America,” we confront the challenge of trying to secure diversity and equity by differential treatment of some groups. Smith argues that we ought to be prepared to offer special accommodations and differential treatment for groups so long as these do not substantially harm the civil rights of others and are consistent with the broader ends of substantive equality. Although Tocqueville’s vision of the challenges of democracy may diverge from our own, his thoughts remain illuminating of contemporary challenges of diversity and inequality.
Measures that address racial and ethnic inequalities have been an important subject of legal and political discussion in many countries over the last decades. The legal questions include the meanings and purposes of equality, adequate methods of legal interpretation, and the possible role of constitutional courts in promoting social transformation. Participants in this debate also raise issues such as the role of the state in a democracy, the changing nature of racism, the social meanings of race and its correlation with national identity. This broad range of questions reveals the immense relevance of this topic for comparative analysis. An adequate understanding of this complex subject requires an examination of how law and race interact in different jurisdictions to produce and legitimate particular social arrangements. This is the case of Brazil, a country that implemented large scale affirmative action policies in the last fifteen years, a process that generated an intense debate about the social importance of race in a country that has historically represented itself as a racial democracy.
Multiculturalism affects institutions crucial to our daily lives: government, workplaces, schools, historical records, the media, laws, and art. It justifies who can participate in politics and whether those such as Asian Americans who have been historically excluded and voiceless will be heard and thus influence policies and resource distribution. This political terrain affects the literary marketplace that may incorporate authors and communities of color who have been historically ignored or rejected for their criticism of Eurocentrism or failure to uphold white norms. Working within a field coming into prominence alongside and because of multiculturalism, Asian American writers understand themselves and their texts to be part of reclaiming forgotten experiences and histories as well as diversifying the imaginative landscape of US literature. As unintended consequences of multiculturalism’s emphasis on Asian cuisine, holidays, or other cultural traditions, Asian Americans are perceived as having a culture that benefits and disadvantages them in terms of citizenship and spheres of agency, denying them full citizenship, upward mobility, equal pay, or artistic capabilities.
A significant body of evidence shows that law schools and many elite colleges use large admissions preferences based on race, and other evidence strongly suggests that large preferences can undermine student achievement in law school and undergraduate science majors, thus producing highly counterproductive effects. This article draws on available evidence to examine the use of racial preferences in medical school admissions, and finds strong reasons for concern about the effects and effectiveness of current affirmative action efforts. The author calls for better data and careful investigation of several identified patterns.
The tremendous toll that COVID-19 has taken on this country’s minority population is the most recent reminder of the health disparities between people of color and people who classify themselves as white. There are many reasons for these disparities, but one that gets less attention than it deserves is the lack of physicians of color available to treat patients of color.
This article argues that because racial inequalities are embedded in American society, as well as in medicine, more evidence-based investigation of the effects and implications of affirmative action is needed. Residency training programs should also seek ways to recruit medical students from underrepresented groups and to create effective mentorship programs.
This essay tells the story of the development of two of the most significant and controversial entitlement programs in twentieth-century U.S. history—collective bargaining and affirmative action. It focuses on the nexus between them—how New Deal empowerment of labor unions contributed to racial discrimination, and thus fed the Great Society race-based programs of affirmative action. The evolving relationship between the courts and the bureaucracies is emphasized, particularly how the judiciary went from an obstacle to an enabler of the entitlement state.
This article outlines one form Work Integration Social Enterprises (WISEs) can take under international human rights law. It builds on the conviction that social enterprises, and WISEs more specifically, are compatible with the foundations and principles human rights are built on. However, there is a lack of engagement with social enterprises generally, in international human rights law. Building on the characteristics of WISEs and substantive equality theories, it is suggested that they can be conceptualized under the heading of affirmative measures. It is expected that this conceptualization can provide a starting point for increasing the visibility of the sector, while simultaneously ensuring its compliance with human rights standards, most notably under the human right to work. The article further points out WISEs and social enterprises’ potential more generally, illustrating how businesses can position themselves as active agents contributing to the realization of human rights.
In this chapter, we examine the problem of Buraku discrimination – a traditional type of discrimination specific to Japan of which few Japanese people are aware. Similar to, but not the same as, the caste system in South Asia, Buraku were areas in which those involved in certain occupations considered distasteful were required to reside. At its most simple, the Burakumin (‘Buraku people’) are those descended from those living in these areas, but Buraku discrimination is more complex than this. The United Nations CERD has called on the Japanese government to address the issue of Buraku discrimination and the government asserts that it is fully committed to doing so. However, traditional Buraku discrimination is now manifesting as hate speech and online discrimination. The Dowa policy – a special measure that had aimed to tackle the issue – ended in 2002 and no new measures were put in place until 2016, when an Act for Eliminating Discrimination against Buraku was finally passed. This chapter focuses on three incidents that occurred in the 2000s as instances of hate speech and clarifies the modern characteristics of Buraku discrimination.
The concluding chapter focuses on two questions. The first is whether Britain is unique in its identity conflicts. While no other EU member state looks likely to repeat Britain’s EU exit adventure in the near future, the demographic trends driving the emergence of identity conflicts – educational expansion and rising diversity through globalisation and mass migration – are common to most wealthier democracies. The effects of these changes are being felt everywhere – educational and ethnic divides are becoming stronger predictors of political choices in many countries, with ethnocentric ‘us against them’ conflicts over issues such as immigration, national identity, diversity pitting identity conservative white school leavers against identity liberal graduates and ethnic minorities. In the United States, which like the UK uses a first-past-the-post electoral system, similar identity divides have reinforced and deepened longstanding party divisions on race and identity. The second question is what impact identity politics can have outside party and electoral politics. Many policies involve decisions about the distribution of resources between groups, and as such public views of such policies may be radically changed by the mobilisation of identity conflicts. We discuss welfare, equal opportunity and immigration policies to illustrate this disruptive potential.
Muslim minority youths in Greece were up to twenty years ago de facto excluded from tertiary education owing to a nexus of historical and political reasons. In 1996 an important affirmative action measure was taken as regards admission policy aiming at compensating for the years-long exclusion. This chapter is based on the testimonies of forty-four minority youths who made use of this affirmative measure and concerns their educational trajectories and their experiences as students. Their stories are framed within the educational system addressing minority learners, the existing socio-cultural context and the debate on affirmative action. The youths express a desire to break away from the constraints of minority life while they acknowledge that affirmative action provides a redress for social injustice and cannot alone provide an opportunity for upward mobility for all. Student life represents a huge social leap that demands the transcendence of multiple social and cultural barriers related to discrimination, geographical seclusion and past isolation. The student narratives oscillate between fear of distancing themselves from the familiarity of their community, but also a desire to break away from tradition and family constraints and make a life of their own.
This chapter reports on results of similar conjoint experiments conducted at the United States Naval Academy and at the London School of Economics. At both institutions, we find pro-diversity preferences that largely complement those from other schools. However, at the Naval Academy we find no preferences in favor of women applicants despite the fact that women are underrepresented among students at the Academy (whereas they make up majorities at most undergraduate institutions), and we find that preferences against gender non-binary applicants and faculty candidates are far stronger at the Naval Academy than at other institutions. At the London School of Economics, we find positive but smaller preferences in favor of blacks but not for East Asian or South Asian applicants but we find strong preferences in favor of applicants from disadvantages socioeconomic backgrounds.
Debates over diversity on campus are intense, they command media attention, and the courts care about how efforts to increase diversity affect students’ experiences and attitudes. Yet we know little about what students really think because measuring attitudes on politically charged issues is challenging. This book adopts an innovative approach to addressing this challenge.
This chapter shows that, even across our deepest political divides, we find little polarization of preferences on admissions and faculty recruitment. Breaking out participants by party, preferences differ, with Democrats favoring all underrepresented minority groups whereas Republicans are, statistically, indifferent toward non-whites and women (although they disfavor gender non-binary applicants). Most surprisingly, when we break out participants by whether they state support for, or opposition to, consideration of race in college admissions on a conventional survey question, both groups give preference to members of underrepresented minority racial/ethnic groups relative to whites, and to women relative to men, in our conjoint experiments. Preferences as revealed in holistic choices differ from those as revealed in standard surveys.
Media, politicians, and the courts portray college campuses as divided over diversity and affirmative action. But what do students and faculty really think? This book uses a novel technique to elicit honest opinions from students and faculty and measure preferences for diversity in undergraduate admissions and faculty recruitment at seven major universities, breaking out attitudes by participants' race, ethnicity, gender, socio-economic status, and political partisanship. Scholarly excellence is a top priority everywhere, but the authors show that when students consider individual candidates, they favor members of all traditionally underrepresented groups - by race, ethnicity, gender, and socio-economic background. Moreover, there is little evidence of polarization in the attitudes of different student groups. The book reveals that campus communities are less deeply divided than they are often portrayed to be; although affirmative action remains controversial in the abstract, there is broad support for prioritizing diversity in practice.
Much of the pivotal debate concerning the validity of affirmative action is situated in a legal context of defending or challenging claims that there may be broad societal gains from increased diversity. Race-conscious affirmative action policies originally advanced legal sanctions to promote racial equity in the United States. Today, increasingly detached from its historical context, defense or rejection of affirmative action is otherwise upheld to achieve diversity. A “diversity” rationale for affirmative action calls for increasing tolerance of the “other,” reducing negative stereotypes, and moderating prejudice as goals—all objectives that deviate from the former aim of race-targeted inclusion intended to resolve racial discrimination in employment and college admissions. Diversity policy provides a tapered defense for affirmative action, one detached from principles of justice and equity. The current article suggests that, despite the fact that the ostensible benefits of “racial inclusion as diversity” may be the remaining legal prop for affirmative action in the U.S., there is a need to consider whether diversity intrinsically can engender the benefits that affirmative action policy seeks to provide.
The chapter examines the relationship between India’s higher judiciary judgments on affirmative action benefits and the response of the Hindu Right to religious conversion. It makes three arguments: First, progressive court interventions can be impeded by restrictive constitutional provisions. India’s judges are hamstrung by the embedded contradiction in the law, which, in its pursuit of one constitutional goal (social justice) has undermined another (religious freedom). Second, even if judges aspire to implement the spirit of the law, and try to provide an equitable result to these groups, their efforts need not produce positive social change. Third, contrary to the view that apex courts produce moderating effects in the arena of religious freedom, judgments have unintended and deleterious impact on religious toleration and may deepen polarization. The empirical analysis highlights this argument by examining the impact on the access of religious converts from Scheduled Caste and Scheduled Tribe groups to affirmative action benefits in 80 religious conversion cases from 1950-2006 in India's higher judiciary. It scrutinizes the Hindu Right's historical and contemporary responses (in parliamentary debates, newschapter reports, and interviews), to these judgments and highlights the unintended consequences of the courts' decisions, namely religious polarization.
By the 1990s, India’s appellate courts had become closely involved in the regulation of street vending in several metropolitan cities. However, despite the frequent use of legal mechanisms by street vendor collectives, there has been little progress towards “formalization” of the street vending economy. To understand the limited impacts of legal intervention, it is necessary to examine the timing and the circumstances under which street vendor collectives first turned to judicial forums for protecting their livelihoods. Based on a historical examination of street vendor politics in Bombay and Madras, I show that legal mobilization in both instances was a response to serious threats faced by the political regimes that had previously shielded street vendors from dispossession and exploitation, rather than being a direct result of new legal opportunities (such as the emergence of public interest litigation). Since organized street vendors had a strong preference for maintaining the status quo, litigation was used as an effective method for buying time in the face of a hostile or uncertain political environment, even when the ultimate verdict was not likely to favor street vendors.