Week 4: Affirmative Action

Question 1

What is the history of Affirmative Action?

Answer 1

It comes from executive orders from Lyndon Johnson and JFK, but was extended under Nixon, also from an executive order

Question 2

UC Regents v Bakke (1976)

Answer 2

Justice Powell agrees with 4 judges that UC Davis’ affirmative action plan is unconstitutional and that Bakke be admitted to the medical school BUT Powell also agreed with the other four judges that race can be considered in higher education decisions

Question 3

What is the appropriate level of scrutiny for affirmative action cases?

Answer 3

Racial classification, regardless of race, and regardless of purpose, warrants strict scrutiny.

Alternate argument: if the classification was based on discrete and insular minority facing a history of discrimination that denies political process, then the defendant in the base, Bakke as a white man, would not be such

Question 4

What did the dissent on Powell’s viewpoint want? (in concerns to UC Regents v Bakke)

Answer 4

Wanted intermediate scrutiny because of the concerns that always arise when race is present (emphasis on Footnote Four)

Question 5

Is there a sufficiently compelling state interest to justify affirmative action?

Answer 5

Remedying societal discrimination is not sufficient, must be specific to the site of the policy; Powell argues that higher education provides 1st Amendment issues: the right to select those students who will best promote a robust exchange of ideas is compelling.

Question 6

How can a state justify the burden for meeting the appropriate level of scrutiny?

Answer 6

No quotas. Yes, for plus factors while considering an array of possibilities for the diversity of a student.

Question 7

What are the three primary compelling interests with regards to using race in a law?

Answer 7

1. Remedy direct discrimination by a specific entity (no societal discrimination)
2. Promote diversity
3. Protect against imminent danger

Question 8

McCleseky v Kemp (1987)

Answer 8

McCleskey argues that he was discriminated against because of his race and because of the race of his victim. Ended up protecting criminal justice laws and policies from being challenged on the basis of racially disparate impact. Also said that the state ought to have burden to show that it was legitimately racially neutral in its procedure and criteria.