The Promise Of Diversity Rethinking American Affirmative Action In Higher Education

This paper concentrates on cases as to American Affirmative Action in higher education.For decades, many public institutions in higher education adopt some race-consciouspolicy in university’s admission process. Race is an ambiguous concept in American life.Having such a diverse society, Americans even have very separated ideas on race-consciousadmission policy. Some Americans asserted that race-conscious policy violates the EqualProtection Clause of Fourteenth Amendment. However, some liberals don’t think so.In my paper, My analysis is on the basis of Defunis(1974), Bakke(1978), Grutter(2003),Gratz(2003) and Fisher(2013) which heard by Supreme Court of United States ofAmerica(Hereinafter the Court), those cases are considered as classical cases which dealingwith issues with regard to affirmative action in higher education. I would find out a convincedstory of affirmative action in higher education by examine judicial reasoning, politicalbackgrounds, and social circumstances.This paper is divided into six parts. In Introduction, I review history of pre-affirmativeaction. Brown as a landmark case in American society, it declares that the de jure segregationis unconstitutional, so it plays a significant role in breaking notorious Jim Crow Law. Alongwith great Civil Rights Movement, federal government adopts affirmative action in achievinga real diversity society. The first goal of affirmative action is improving minority groups’rights and liberties which granted by the Constitution. I review almost all studies onaffirmative action in higher education, both in domestic and abroad academia. In China, wealso have a similar issue which pertaining minority groups. Learning from the West is apopular trend in constructing a more perfect China from mid-nineteen century to present.Part I introduces relatively completed judicial history of affirmative action in highereducation, and endeavored to draw a simple scene of judicial reasoning and legal sources as toaffirmative action in higher education which framed by the Court. Part II, I analyze thejudicial framework that the Court applies in deciding whether or not race-conscious admissionpolicy lawfully. This part based on Part I’s facts, I want to explain how the Court justifiesrace-conscious policy in admission process. In my view, there is a three-step test in justifyingtake race into account in university’s admission. First, race classification is a suspectclassification, so whoever use of race have to undergo strict scrutiny. Second, strict scrutinyrequires the party who uses of race have to hold burden of proof that require them showing their action are narrowly tailored to a compelling governmental interest. Third, the core ofdiversity rationale is educational interest flow from a diverse student body which is acompelling interest recognized by the Court. Part III, I keep focusing on ideologies of justices.I want to explore which factor would play a role in determining their political beliefs byutilize an assumption, examine selection of justices and composition of the Court. I assert thatmembers of the Court have political obligation which requires them to keep the society as awhole, and maintain the fundamental principles of democracy. No matter Justices belong toliberal wing or conservative wing; this political obligation should be in their mind. Part IVexplores social and political influences on the judicial decision-making. I take the AmicusCuriae (friend of the court) Briefs as an example to demonstrate that the great decision notonly made by the Court, but also by people. In this part, I examine some political actors aswell, such as president, congress, state governments. I attempt to find out the social andpolitical backgrounds regarding affirmative action in higher education. From birth ofrace-conscious policy, opponents of affirmative action criticized it constantly. Some states’legislations decided banning affirmative action; I consider those actions as some radicalbehaviors in our age.In conclusion, I confirm that diversity rationale is a moral rationale, moralencouragement more than legal argument. Diversity is a political promise regarding what typeof society We the People need to construct, and it’s a vital value which guaranteed bygovernment of the United States. Why do Americans have faith in judicial power? Briefly, it’san outcome from a long judicial history. Mostly, in my view, the Court recognizes boundariesof its power. Judiciary can’t solve every single problem; the entire society including otherbranches of government would help the Court out in achieving impartial rulings. In ademocracy, people don’t force to being have same ideas on same issue. How to lead citizensto participant in deliberate talks is some crucial issue on every citizen’s wish list. I assert thatdeliberate talks don’t require reaching any consensus necessarily. For any countries, thecritical thing is being construct an effective deliberate talks system which guides by commonbeliefs and due process.Affirmative action is a controversial issue in American life; it may last for severaldecades. Judicial branch can’t make a decision for every American in solving this dilemma.However, it still can lead We the People to figure it out in a proper way.