| Affirmative action is a series of measures taken by the United States to compensate and correct the consequences of legal discrimination since the 1960 s.However,those measures are suspected of violating the principle of equal protection in the Fourteenth Amendment of the United States Constitution.And disputes over the selection and application of judicial review standards have arisen.Affirmative actions in higher education refer to preferential policies,which take race into consideration,to recruit more ethnic minority students.Therefore,the court needs to scrutiny the constitutionality of such polices and formed a series of typical cases,including Bakke,Hopwood,Gratz,Grutter,Fisher,and Harvard.This article explores the selection and application of judicial review standard in these cases and discusses relative debates by analyzing certain theories.First,the strict scrutiny standard was established and adopted gradually to deal with cases in higher education admissions.The opinions of Justice Powell and Justice O'Connor played a key role.Justice Powell did not make a clear explanation on the choice of judicial review standards,but Justice O'Connor promoted the rules that the strict scrutiny standard should be used based on Justice Powell's opinions.On the one hand,it shows the racial factors in affirmative action of higher education admissions belong to the category of suspected classification.On the other hand,it also shows the court's response to the specificity of affirmative action.This kind of strict scrutiny standard is derived from the "strict but not fatal" scrutiny standard advocated by Justice O'Connor in the Adarand.The selection of strict scrutiny is adequate and meets the requirement of smoke out theory.Second,the strict scrutiny standard is appropriately applied in the affirmative action of higher education admissions and meets the requirement of weighted balancing theory.Under the end-means analyzing structure of strict scrutiny,a new compelling interest which called educational diversity benefit was established based on the First Amendment of the United States Constitution to replace the "compensating past discrimination consequences" interest in the original affirmative action area.Judicial deference should be adopted in the review of the educational diversity because of the requirement of the limits of judicial power and the embodiment of strict scrutiny standards that are not fatal.However,the critical mass interest related to the interests of educational diversity is a vague concept so that the majority opinion in Grutter is flawed.In terms of means review,strict scrutiny requires that the program being reviewed is flexible,non-mechanical,sufficient individual consideration,and considering race as a plus factor.It is also required that the program considers race-neutral alternatives seriously and in good faith,has a sunset provision or regular testing for the admission program.Although the majority opinion in Grutter gave the university improper respect in the means review and directly presumed the school's good faith,it was corrected in Fisher.It was clear that the judgment on whether the means and purpose are narrowly tailored should be based on evidence by the court,which means the "strict" aspect of strict scrutiny standard.The “strict but not fatal” strict scrutiny standard is important to keep balance among different parties.Finally,the strict scrutiny will be still used in the future,that can be concluded by stare decisis and the position of justices.The interests of diversified education will still constitute compelling interests while the critical mass is likely to be overturned or changed because of its ambiguity.The strict proof requirements stated in Fisher will still be used and more the impact on third parties will be emphasized.Therefore,affirmative action of higher education admissions will be remained for a period of time based on actual needs,but finally it will be replaced or be ended because of suspect classification and changes in social reality. |
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