The Judicial Review Of Race-conscious Affirmative Action In Higher Education Student Admission Programs In The United States

The thesis explores the controversial issues relating to race-conscious affirmative action in higher education student admission programs. What kind of the standard judicial review is suitable for the state university’s policy of using race in undergraduate admissions decisions when racial and ethnic distinctions of any sort are inherently suspect and call for the most exacting judicial examination? Are anti-affirmative action ballot initiatives in violation of the Equal Protection Clause of the Fourteenth Amendment by restricting the political process of minorities in such a way that places special burden on their ability to secure preference that is not present for other groups? Using a variety of databases, including West Law and LEXIS, I sought to identify and analyze all published legal decisions regarding affirmative action in these contexts. The scope of the study encompasses legal ruling from the Supreme Court and federal courts. My purpose of the study is to analyze, as specifically as possible, the suitable standard of judicial review for state university’s use of racial preferences in admission programs under the Equal Protection Clause of Fourteenth Amendment. My study is composed of four chapters.The first chapter discusses three questions, including the general and historical origins of the controversial issue, the merits and the dilemma of the racial affirmative action in higher education student admission programs. First, the policy stemmed from affirmative action which was designed to aid those that had suffered historic and widespread mistreatment in the form of both de jure and de facto discrimination. It was also described as a temporary policy embraced by government, business and universities as a means of achieving true equal opportunity. Second, the authority for the policy is mainly prescribed by Civil Rights Act of 1964. The Act establishes the principle that if the agency receives federal funds is found in violation of Title VI, that agency may lose its federal funding. Third, identical measures appeared on the ballot in both states, which were also closely modeled on initiatives that easily won approval in California in 1996, Washington in 1998, and Michigan in 2006. The amendments directly affect the affirmative action policies in all state public institutions of higher education, and have significantly changed the quantities of underrepresented minorities students— students whose proportions in higher education are lower than their representation in the larger population. Hence, the policy has aroused the judicial review under the Equal Protection Clause of the Fourteenth Amendment.The second chapter focuses on the standards of review under the fourteenth amendment. In determining whether a classification is consistent with the Equal Protection Clause, courts must look to whether the classification amounts to invidious, arbitrary, or unreasonable discrimination. This determination is made by using one of three standards of constitutional review: the “rational relationship test”, the “intermediate test” and the “strict scrutiny test”. The rational relationship test is typically applied by the Court when faced with statutes that involve classifications relating to economic issues. Under this test, the Court will only seek to determine “whether it is conceivable that the classification bears a rational relationship to an end of government which is not prohibited by the Constitution.” The “intermediate test” has traditionally been applied in cases involving gender and illegitimacy. To satisfy the intermediate test, a classification must serve an “important governmental objective” and must be “substantially related” to the achievement of such an objective. The strict scrutiny test is typically applied when the government makes classifications based on race, national origin, or which affect a fundamental right, such as the right to vote. Under this test, the classification will be upheld only if statutes must have an extremely important objective and the government must show that the relationship between the classification and objective is necessarily tailored. This is the most probing standard of equal protection review. Thus, the policy is subject to the strict scrutiny test in that the state institutions use classification based on race.The third chapter reviews the circuit courts and Supreme Court decisions regarding race-conscious affirmative action student admission programs. The landmark case is the Regents of the University of California v. Bakke(1978). The dispute involved a white medical school applicant, Bakke, who sued the university after receiving his second letter of rejection and learning the institution maintained a “special admission program”, which held sixteen out of one hundred seats for underrepresented minority students. Although the majority of Justice did not decide which standard judicial review was applied, the strict scrutiny test eventually was applied for the sake of Justice Powell. In Gratz v. Bollinger(2003), Justice Rehnquist established that all racial classifications reviewable under the Equal Protection Clause must be strictly scrutinized from the precedent “Adarand Constructor, Inc. v. Pe?a(1995)”. In Grutter v. Bollinger(2003), Justice O’Connor continued to back on Justice Powell’s opinion that state university’s interest in achieving educational diversity could constitute compelling state interest. In Fisher v. University of Texas at Austin(2013), Supreme Court demand the university demonstrated the policy was narrow tailored the diversity interests after considering all conceivable race-neutral alternative. In Schuette v. Coalition to Defend Affirmative Action(2014), Justice Kennedy held that the case is not about the constitutionality of the policy, but voters may choose to prohibit the consideration of such policy. With the analysis of these cases, we concluded that the strict scrutiny test has been established to apply the constitutionality of the racial-conscious admission programs in state institution in higher education.The fourth chapter analyzes the theory of different judicial review standards from the Justice though the above cases. First of all, the “apparent unconstitutional theory” is arbitrary in that the law does not decline to racial classification. Second, the “political process principle” is too conservative to protect the underrepresented minorities. Third, the rational test and the immediate test are not easily controlled by the courts for not only the obscurity of discrete and insular minorities but also the intangibility of benign motivation. Hence, the strict scrutiny is suitable for the standard of judicial review of the policy. Under this standard, it can prevent the government abusing the racial classification and probe the true end of legislative interests. However, context matters when reviewing such action. When considering the state university is difference from the other government agencies, the standard should be less strict for the democratic function.