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Video transcript

- [Instructor] What we're going to do in this video is discuss affirmative action and it can be a sensitive topic, so I encourage folks to engage on the message boards but to do so respectfully. So, the first question is what is affirmative action? So, generally speaking you could view it as efforts to improve opportunities for underrepresented groups and oftentimes it will be for underrepresented racial or ethnic groups or for women. To help us think through the types of efforts that might be classified or that might be associated with affirmative action we can set up a little bit of a spectrum here. At one end of the spectrum you could have outright quotas. These could be situations where say a university admissions department says we're going to say 10% of our class is gonna be from this group or from that group. In between you could have race or gender-aware admissions where it is a factor in admissions. Race/gender is a factor. And at this end of the spectrum there's outreach to groups to make sure that people who could be qualified who are from underrepresented groups are applying, so this would be outreach. Now, in popular language today, affirmative action tends to refer to things more on this end of the spectrum and the phrase affirmative action first comes into popular usage during Lyndon B. Johnson's presidency. Now, as you can imagine this is a very sensitive topic because on one hand folks could say yes, it would be nice to give opportunity for folks who historically have not had opportunity or folks who are historically underrepresented but other people might say well, shouldn't we be a race blind society? If you are factoring race for one group, well, doesn't that hurt another group and couldn't it cause reverse discrimination? And to appreciate the legal history here, we can go back to 1978 where we have the case Regents of the University of California v. Bakke in the United States Supreme Court and this is a situation where Bakke is a former solider and engineer who also happens to be white who wants to go to medical school. He gets rejected by the University of California at Davis and he claims that there was reverse discrimination at play because they had a quota system. 16 out of the 100 seats at the medical school were reserved for underrepresented minorities and the Supreme Court actually had trouble deciding on this case. It was a very divided opinion and eventually Justice Powell's opinion became the opinion that people paid attention to. And it was a little bit mixed. It said that outright quotas are unconstitutional and that Bakke should be allowed admission and he was able to go to University of California, Davis Medical School but Justice Powell tried to thread the needle by saying even though quotas might be unconstitutional it is okay to consider race as a factor in admissions especially if it's being used for the educational benefit of diversity of the community. In 1996 the voters of California actually voted directly on this issuer and they passed the California Civil Rights Initiative more commonly know as Proposition 209 and this proposition made it illegal to consider race, sex or ethnicity when it came to government jobs or admissions in state schools. It has been challenged by proponents of affirmative action many time but all of those challenges have been unsuccessful to date. These issues surface again in the Supreme Court in 2003 when we get to the Grutter versus Bollinger case. This case has some parallels to the Bakke case. In this case Grutter is a white applicant to the University of Michigan Law School who claims that she was denied admission because the Law School was giving racial preference which was causing essentially reverse discrimination. The Supreme Court rules against Grutter but it's really interesting to read the majority opinion written by Sandra Day O'Connor and the dissenting opinion from Clarence Thomas because it gives us some texture into the nuances of these decisions. Here is an excerpt from Sandra Day O'Connor's majority opinion. We last addressed the use of race in public higher education over 25 years ago. In the landmark Bakke case, we reviewed a racial set-aside program that reserves 16 out of 100 seats in a medical school class for members of certain minority groups. Since this Court's splinter decision in Bakke, Justice Powell's opinion announcing the judgment of the court has served as the touchstone for constitutional analysis of race-conscious admissions policies. And then she goes on to list the situations that Justice Powell said were not okay to justify race as a factor in admissions. Justice Powell rejected an interest in reducing the historic deficit of traditionally disfavored minorities in medical schools and in the medical profession as an unlawful interest in racial balancing. So, according to Justice Powell in the Bakke case, you can't justify race-conscious admissions to try to fix historic deficits. Sandra Day O'Connor goes on to write Justice Powell in the Bakke case rejected an interest in remedying societal discrimination because such measures would risk placing unnecessary burdens on innocent third parties who bare no responsibility for whatever harm the beneficiaries of the special admissions program are thought to have suffered. So, you also can't have race-conscious admissions if the goal is to remedy current societal discrimination because if you're benefiting someone, you're also putting the burden on people who might have nothing to do with that societal discrimination. And then she goes on to write that in the Bakke case Justice Powell approved the university's use and here we're talking about the University of California's use of race to further only one interest, the attainment of a diverse student body. And now in this part of the excerpt she shifts to talking about the case at hand in Grutter versus Bollinger where we're talking about admissions to the University of Michigan Law School. As part of its goal of assembling a class that is both exceptionally academically qualified and broadly diverse, the Law School seeks to enroll a critical mass of minority students. The Law School's concept of critical mass is defined by reference to the educational benefits that diversity is designed to produce. These benefits are substantial. As the district court emphasized the Law School's admissions policy promotes cross-racial understanding, helps to break down racial stereotypes and enables students to better understand persons of different races. We, the majority in the Supreme Court, agree that in the context of its individualized inquiry into the possible diversity contributions of all applicants, the Law School's race-conscious admissions program does not unduly harm non-minority applicants. In summary, the Equal Protection Clause of the 14th Amendment does not prohibit the Law School's narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body. So, in this situation the majority opinion that's penned by Justice O'Connor is clarifying Powell's statement in Bakke saying that diversity is a legitimate educational benefit that universities can optimize around as long as race is one of many factors in the admissions process. Now, on the other hand, you have the dissenting opinion from Justice Clarence Thomas. Here is an excerpt he wrote. I believe blacks can achieve in every avenue of American life without the meddling of university administrators. Because I wish to see all students succeed whatever their color, I share in some respect the sympathies of those who sponsor the type of discrimination advanced by the University of Michigan Law School. The Constitution does not, however, tolerate institutional devotion to the status quo in admissions policies when such devotion ripens into racial discrimination. So, he's calling the University of Michigan Law School's admissions policies outright discrimination. He's saying that look, even though it might be the status quo, it's essentially what a lot of universities have been doing since Bakke. It's not okay because it has ripened into racial discrimination. The majority, he's talking about the majority of the Supreme Court upholds the Law School's racial discrimination not by interpreting the people's Constitution, so the US Constitution but by responding to a faddish slogan of the cognoscenti. So, here he's making reference to this idea of diversity which he's calling a faddish slogan of the cognoscenti. Cognoscenti would be people who are in the know, or people who think they're in the know. Nevertheless, I concur in part in the Court's opinion. I agree with the Court's holding that racial discrimination in higher education admissions will be illegal in 25 years. And here he's making reference that in Sandra Day O'Connor's opinion she did say that in 25 years it might not be okay to have race-conscious admissions. I respectfully dissent from the remainder of the Court's opinion and the judgment, however, because I believe that the Law School's current use of race violates the Equal Protection Clause and that the Constitution means the same thing today as it will in 300 months. So, here he's saying look, if the majority thinks that it's right now okay to have race-conscious admissions but it's not okay in 25 years, well, what's gonna change about the Constitution? If it's going to be unconstitutional in 25 years, it should be unconstitutional today. Finally, he goes on to say the Constitution abhors classifications based on race not only because those classifications can harm favored races or are based on illegitimate motives but also because every time the government places citizens on racial registers and makes race relevant to the provision of burdens or benefits, it demeans us all. I encourage you to think about it. Are you more on the side of Justice Powell or Sandra Day O'Connor where race is a legitimate factor in admissions especially if it's in service to diversity which is considered a benefit for an educational community or you more on the side of Justice Thomas and Proposition 209 in California saying that look, we need to be racially blind. The 14th Amendment, the Equal Protection Clause of the 14th Amendment says that we should be a racially blind country and that every time we try to involve race, it might do more harm than good. You decide.