Educational Law How Lawful? How Term Paper

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Conservatives, on the other hand, have many passions and one of them is a color-blind government. Most of them believe that all policies of discrimination should be discarded. They view these policies as unwise, immoral and unconstitutional. Three conservative organizations submitted a collective brief to the Supreme Court on the Michigan cases. These organizations were the Center for Equal Opportunity, the Independent Women's Forum and the American Civil Rights Institute. Their brief succinctly stated that racial preferences were incompatible with the 14th Amendment. The 14th Amendment, according to them, clearly states that no person within its jurisdiction would be denied the equal protection of the laws. The silence of the justices to this statement was perceived to indicate insufficient interest in the original understanding than in their own case law. In 1865 and 1866, radical Republicans proposed a constitutional amendment that no State could set distinctions in civil rights and privileges according to race, color or descent. That proposal was ignored in the Joint Committee of the 39th Congress. It was the opinion of many that America would have been in better condition if this proposal was approved. The 14th Amendment, which was passed, was really much more limited. In the late 1860s and early 1870s, the equal protection clause was intended for the States to extend the protection of lives, limbs and property from only some to all people. Congress member Thaddeus Stevens emphasized that punishment, protections, redress and the right to testify in court would be equal to whites and Blacks. The equal protection, due process, privileges and immunities clauses of the 14th Amendment might have been originally intended to some of the rights in the Bill of Rights to the States or to guarantee other civil rights. Reconstruction-era Republicans considered segregation in education a violation of civil rights so that the Brown v Board of Education case was grounded on this. The Supreme Court should have rejected the University of Michigan's admission preferences as illegal and unconstitutional. Racial discrimination may not be prohibited by the Constitution but it is, by the Civil Rights Act of 1964. This has two implications. The Supreme Court is not allowed to prohibit racial preferences not prohibited by statute. But if Congress wants to allow universities to practice racial preferences, it should change the law so that court decisions would be honest and constitutional (Ponnuru).

Federal Judge David Lawson gave Michigan universities a six-month extension to continue their race-and-gender-based admissions, hiring and financial assistance (Walker 2007). This ruling delayed the implementation of a constitutional amendment, which banned affirmative action scheduled to become effective in late December. Michigan State University and Wayne State University wanted additional time to study Proposal 2. The extension would end on July 1. The delay was the idea of Governor Jennifer Granholm, State Attorney General Mike Cox and the lawyers of the three universities. Governor Granhold said they understood the voters' decision but her group was also very much administratively committed to diversity. Affirmative action proponents bewailed the universities' lack of excuse to continue their practice for another half year (Walker).

2000 National Opinion Research Center survey showed that a majority of Americans favored affirmative action when questions were vaguely worded or posed (Paul 2003). When words, like "preferences" and "quotas" were used, enthusiasm for affirmative action steeply vanished. At first, respondents say that past discrimination practices should now stop and preference in hiring and promotion should be given Blacks. Others said preference would discriminate against white and therefore wrong. When asked if they favored preferential hiring and promotion for Blacks, only 13% of whites and 43% of Blacks agreed. In the meantime, Blacks showed stronger support for affirmative action programs than whites did (Paul).

Two affirmative action cases reflected the opinions of politicians of both parties and expressed as binding Supreme Court decisions (National Review 1995). The first was the Adarand Constructors v Pena and the second was th Missouri v Jenkins. The Adarand case had to do with minorities in federal transportation projects. The Federal Government manages $14.4 billion a year to disadvantaged business enterprises, which were owned by minorities or women. The Missouri case was a review of the public school system of Kansas City. For almost a decade then, the federal district judge had ordered the State to use $200 million annually to make the inner city schools equal to those of the suburbs. In each case, four justices decided to maintain the status quo. Justices Scalia and Thomas concurred.

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Justice Thomas ruled as irrelevant if racial classifications were drawn by oppressors or those who sincerely wanted to help the disadvantaged. Judging the Missouri case, unaided Blacks could not achieve. He saw this conclusion as resulting from a theory of Black inferiority. Chief Justice Rehnquist and Justices O'Connor and Kennedy could at best urge affirmative action advocates to note that racial qualifications are constitutional only if these jibed and furthered government interests. The majority in the Bench decided that reverse discrimination is not right, unless done with caution. The main decision was then to be made by voters in a referendum on affirmative action in 1996. Other States were expected to follow suit. If the express will of the majority would be that of the Constitution. If this would not be carried out, voters would find other means to do so (National Review).

Moving back to the Michigan case, President George W. Bush and the Republicans hoped that the controversy had reached an end (O'Sullivan 2003). The court ruling reached a balance. Racial preferences would be allowed and remain entrenched if disguised as "individualized" assessments. Diversity was the primary consideration. Opinion-makers established that diversity should now be accepted as a basic corporate, economic, cultural, and political reality. Opposing racial preferences would be regarded only as a sentiment. No one among the politically motivated would come to the Supreme Court to reverse a decision and rule that diversity as not a compelling interest of government. Conservatives could not come oppose those preferences up to the 25 years limit set by Justice O'Connor. In addition to all these powerful groups, other conservatives and libertarians found corporate America comfortable enough. They would think they got what they wanted in the form of diversity and a multi-ethnic elite. But they were likely to be disappointed (O'Sullivan).

Entrenched racial preferences in college would fail to develop a multi-ethnic elite on two grounds (O'Sullivan 2003). First these preferences systematically mismatch minority talent with academic opportunities. They would pit the top 10% of the minority students against the top 1% of white and Asian students. The expected result would be for a disproportionately large numbers of these minority students to drop out. The survivors would explain their failure away as the outcome of racism. This would explain why diversity classrooms become venues of resentment and rift rather than an idealized vibrant exchange of life experiences. And in an effort at assuring that these failures would not keep a multi-ethnic elite from developing, the same system of race preferences had to persist in some form after college (O'Sullivan).

The second reason or problem would follow at this point (O'Sullivan 2003). If the new multi-ethnic elite must be recognized for leadership, Americans would do so on merit. But if this elite would be engineered, it would remain under suspicion and attract widespread cynicism. But this projected multi-ethnic elite could only be engineered as it would develop out of a current system of permanent racial preferences. Projections do not end here. The ill effects of this kind of multi-ethnic elite would be permanently under suspicion by corporate America. It would behave contrary to corporate America's own market independence and overall and bigger interests (O'Sullivan).

Conservatives, libertarians and other thinkers must promptly accept that diversity is not necessarily confined to race (O'Sullivan 2003). It is only one of the considerations not covered by merit. Other considerations can be gender equality, social justice, class mobility, and disability rights. Corporations and business hire, fire, and promote on the basis of merit as far as profit maximization is assured. However, they are not too interested to implement diversity. But because diversity is here, corporations make ready for it. Anti-discrimination observances and a vast federal bureaucracy within the corporation are trained to enforce the policy of diversity. Diversity has also come to be a major criterion in corporate decisions. And this enforcement would seep and intrude progressively into corporate management in many ways. Diversity groups would expand from racial to economic and other categories. They would assert influence in policy-making on hiring and promoting. And it would not be unlikely for this interference to disrupt corporate decisions or project a different corporate image in topics like immigration, poverty and diversity itself (O'Sullivan).

Recalling the response to Reconstruction, early affirmative action supporters rallied that every individual should count as any other (Katznelson 2006). Coding by color would be wrong and unfair. But reverse racial discrimination.....

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