- [Instructor] What we're going to do in this video
is discuss affirmative action
and it can be a sensitive topic,
so I encourage folks to engage on the message boards
but to do so respectfully.
So, the first question is what is affirmative action?
So, generally speaking you could view it
as efforts to improve opportunities
for underrepresented groups
and oftentimes it will be for underrepresented racial
or ethnic groups or for women.
To help us think through the types of efforts
that might be classified
or that might be associated with affirmative action
we can set up a little bit of a spectrum here.
At one end of the spectrum
you could have outright quotas.
These could be situations
where say a university admissions department
says we're going to say 10% of our class
is gonna be from this group or from that group.
In between you could have race or gender-aware admissions
where it is a factor in admissions.
Race/gender is a factor.
And at this end of the spectrum
there's outreach to groups
to make sure that people who could be qualified
who are from underrepresented groups are applying,
so this would be outreach.
Now, in popular language today,
affirmative action tends to refer to things
more on this end of the spectrum
and the phrase affirmative action
first comes into popular usage
during Lyndon B. Johnson's presidency.
Now, as you can imagine
this is a very sensitive topic
because on one hand
folks could say yes,
it would be nice to give opportunity
for folks who historically have not had opportunity
or folks who are historically underrepresented
but other people might say
well, shouldn't we be a race blind society?
If you are factoring race for one group,
well, doesn't that hurt another group
and couldn't it cause reverse discrimination?
And to appreciate the legal history here,
we can go back to 1978
where we have the case Regents of the University
of California v. Bakke in the United States Supreme Court
and this is a situation
where Bakke is a former solider and engineer
who also happens to be white
who wants to go to medical school.
He gets rejected by the University of California
at Davis and he claims
that there was reverse discrimination at play
because they had a quota system.
16 out of the 100 seats at the medical school
were reserved for underrepresented minorities
and the Supreme Court actually had trouble
deciding on this case.
It was a very divided opinion
and eventually Justice Powell's opinion
became the opinion that people paid attention to.
And it was a little bit mixed.
It said that outright quotas are unconstitutional
and that Bakke should be allowed admission
and he was able to go
to University of California, Davis Medical School
but Justice Powell tried to thread the needle
by saying even though quotas
might be unconstitutional
it is okay to consider race as a factor in admissions
especially if it's being used for the educational benefit
of diversity of the community.
In 1996 the voters of California
actually voted directly on this issuer
and they passed the California Civil Rights Initiative
more commonly know as Proposition 209
and this proposition made it illegal
to consider race, sex or ethnicity when it came
to government jobs or admissions
in state schools.
It has been challenged by proponents of affirmative action
many time but all of those challenges
have been unsuccessful to date.
These issues surface again in the Supreme Court
in 2003 when we get to the Grutter versus Bollinger case.
This case has some parallels to the Bakke case.
In this case Grutter is a white applicant
to the University of Michigan Law School
who claims that she was denied admission
because the Law School was giving racial preference
which was causing essentially reverse discrimination.
The Supreme Court rules against Grutter
but it's really interesting to read the majority opinion
written by Sandra Day O'Connor
and the dissenting opinion from Clarence Thomas
because it gives us some texture
into the nuances of these decisions.
Here is an excerpt
from Sandra Day O'Connor's majority opinion.
We last addressed the use of race
in public higher education over 25 years ago.
In the landmark Bakke case,
we reviewed a racial set-aside program
that reserves 16 out of 100 seats
in a medical school class
for members of certain minority groups.
Since this Court's splinter decision in Bakke,
Justice Powell's opinion
announcing the judgment of the court
has served as the touchstone for constitutional analysis
of race-conscious admissions policies.
And then she goes on to list
the situations that Justice Powell
said were not okay to justify race
as a factor in admissions.
Justice Powell rejected an interest
in reducing the historic deficit
of traditionally disfavored minorities
in medical schools
and in the medical profession
as an unlawful interest in racial balancing.
So, according to Justice Powell in the Bakke case,
you can't justify race-conscious admissions
to try to fix historic deficits.
Sandra Day O'Connor goes on to write
Justice Powell in the Bakke case
rejected an interest in remedying societal discrimination
because such measures would risk placing
unnecessary burdens on innocent third parties
who bare no responsibility
for whatever harm the beneficiaries
of the special admissions program
are thought to have suffered.
So, you also can't have race-conscious admissions
if the goal is to remedy current societal discrimination
because if you're benefiting someone,
you're also putting the burden on people
who might have nothing to do
with that societal discrimination.
And then she goes on to write
that in the Bakke case Justice Powell
approved the university's use and here we're talking
about the University of California's use
of race to further only one interest,
the attainment of a diverse student body.
And now in this part of the excerpt
she shifts to talking about the case at hand
in Grutter versus Bollinger
where we're talking about admissions
to the University of Michigan Law School.
As part of its goal of assembling a class
that is both exceptionally academically qualified
and broadly diverse,
the Law School seeks to enroll
a critical mass of minority students.
The Law School's concept of critical mass
is defined by reference to the educational benefits
that diversity is designed to produce.
These benefits are substantial.
As the district court emphasized
the Law School's admissions policy promotes
cross-racial understanding,
helps to break down racial stereotypes
and enables students to better understand
persons of different races.
We, the majority in the Supreme Court,
agree that in the context of its individualized inquiry
into the possible diversity contributions
of all applicants,
the Law School's race-conscious admissions program
does not unduly harm non-minority applicants.
In summary, the Equal Protection Clause
of the 14th Amendment
does not prohibit the Law School's narrowly tailored use
of race in admissions decisions
to further a compelling interest
in obtaining the educational benefits
that flow from a diverse student body.
So, in this situation the majority opinion
that's penned by Justice O'Connor
is clarifying Powell's statement in Bakke
saying that diversity is a legitimate educational benefit
that universities can optimize around
as long as race is one of many factors
in the admissions process.
Now, on the other hand,
you have the dissenting opinion
from Justice Clarence Thomas.
Here is an excerpt he wrote.
I believe blacks can achieve in every avenue
of American life without the meddling
of university administrators.
Because I wish to see all students succeed
whatever their color,
I share in some respect the sympathies
of those who sponsor the type of discrimination
advanced by the University of Michigan Law School.
The Constitution does not, however, tolerate
institutional devotion to the status quo
in admissions policies
when such devotion ripens into racial discrimination.
So, he's calling the University of Michigan Law School's
admissions policies outright discrimination.
He's saying that look,
even though it might be the status quo,
it's essentially what a lot of universities
have been doing since Bakke.
It's not okay because it has ripened
into racial discrimination.
The majority, he's talking about the majority
of the Supreme Court upholds
the Law School's racial discrimination
not by interpreting the people's Constitution,
so the US Constitution
but by responding to a faddish slogan
of the cognoscenti.
So, here he's making reference to this idea of diversity
which he's calling a faddish slogan of the cognoscenti.
Cognoscenti would be people
who are in the know,
or people who think they're in the know.
Nevertheless, I concur in part
in the Court's opinion.
I agree with the Court's holding
that racial discrimination in higher education admissions
will be illegal in 25 years.
And here he's making reference
that in Sandra Day O'Connor's opinion
she did say that in 25 years
it might not be okay to have race-conscious admissions.
I respectfully dissent
from the remainder of the Court's opinion
and the judgment, however,
because I believe that the Law School's current use
of race violates the Equal Protection Clause
and that the Constitution means the same thing today
as it will in 300 months.
So, here he's saying look,
if the majority thinks that it's right now okay
to have race-conscious admissions
but it's not okay in 25 years,
well, what's gonna change about the Constitution?
If it's going to be unconstitutional in 25 years,
it should be unconstitutional today.
Finally, he goes on to say
the Constitution abhors classifications based on race
not only because those classifications
can harm favored races
or are based on illegitimate motives
but also because every time the government places citizens
on racial registers
and makes race relevant to the provision of burdens
or benefits, it demeans us all.
I encourage you to think about it.
Are you more on the side of Justice Powell
or Sandra Day O'Connor
where race is a legitimate factor in admissions
especially if it's in service
to diversity which is considered
a benefit for an educational community
or you more on the side of Justice Thomas
and Proposition 209 in California
saying that look, we need to be racially blind.
The 14th Amendment, the Equal Protection Clause
of the 14th Amendment says
that we should be a racially blind country
and that every time we try to involve race,
it might do more harm than good.
You decide.