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Lecture 16

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POLS 4050
Jordi Diez

Hinrichs, P. (Oct 2014). Affirmative Action Bans and College Graduation Rates. Economics of Education Review, 42, 43-52. Retrieved from file:///C:/Users/Megan/Downloads/2014_-__- _Affirmativeactionbansandcollegegraduationrates[retrieved_2017-02-19].pdf Although this paper is U.S centred, it is very useful for my research because it breaks down the arguments in favour of affirmative action bans and how abolishing affirmative action could benefit minority groups in some ways. However, this paper argues affirmative action is beneficial to society and colleges with affirmative action bans are extremely detrimental to the cause. This paper also ties into the (Yifan, et al.) article and discusses the role of the K-12 education system. This article claims and focuses on the SAT scores, the mismatch hypothesis, and college equality as the main areas to focus on with affirmative action. I agree, I would like to focus my research on the mismatch hypothesis; unfortunately, this article does a poor job describing the relationship between their findings and the mismatch hypothesis. The data is also limited because it only focuses on graduation rates. This paper concludes the difficulty of program and school is an important variable in the mismatch hypothesis which is not unanticipated. Predictably, this paper concludes affirmative action bans do more harm than good. - Literature focuses on bans/SAT scores, mismatch hypothesis theory, college quality, - Paper only examines graduation rates - Depends on schools and difficulty of program – Malcom Gladwell David/goliath - Affirmative action bans bad Finkle, P, Strom, T. (1990). Affirmative Action, Natural Law and Justice. Windsor Yearbook of Access to Justice 10, 79-104. Retrieved from file:///C:/Users/Megan/Downloads/10WindsorYBAccessJust79.pdf This paper questions whether affirmative action policies and programmes are just. There is an initial consideration of how one can ascertain the justice of such undertakings in a secular age that has embraced relativism. Such a policy or programme must be closely examined in order to determine its underlying assumptions and actual effects. The authors use the concept of natural law as a means to determine the justice of the concept and practice of affirmative action. Legislation, policies and programmes in both Canada and the United States provide useful examples which permit evaluation of their underlying assumptions and effects. The authors conclude that, with minor exceptions, affirmative action policies and programmes are unjust to individuals and do not contribute to a just society. Even if affirmative action activities are evaluated from a utilitarian perspective which, by definition, eschews the concept of justice, most such programmes seem to do more harm than good Despite this evaluation, there is little chance of an early return to the ideal of meritocracy. The inevitable practical problem of deciding what criteria should be used to measure merit provides a reason, seized on by many, to reject the ideal of a meritocracy. As well, those with a "vision of equality "reject the unrepresentative outcomes that meritocracy seems always to produce. Finally, many groups benefit or hope to benefit from affirmative action and the prevailing intellectual and political climate of opinion seems predisposed to respond favourably to their demands for such programmes. It is important to recognize that affirmative action is not the same thing as equality of opportunity. Equal employment opportunity is premised on the treatment of everybody on an equal basis in the workplace. It promotes the hiring and advancement of candidates based on criteria related to competence to do a particular activity. Merit is determined solely on the basis of ability in relation to other candidates, unless, of course, other criteria related to group membership are directly related to job performance. Competence measured on an individualized and non-discriminatory basis is the criterion that is associated with equality of opportunity. Affirmative action proponents argue that it is not enough to have this type of formal equality because it does not address what they refer to as systemic discrimination. They assert that "(c)onsequently equal employment opportunity treats unequal groups ... equally, and this maintains the inequalities."8 They insist that only a programme which also focusses upon equality of results can ensure that discrimination, past, present and future, will be eliminated The first argument is based on the idea of compensatory justice, which holds that when a particular group within the community has been discriminated against in the past, it acquires the right to be compensated for these wrongs by the community as a whole.10 The second argument is based on the notion of distributive justice, which holds that when a particular identifiable group within a community is disadvantaged either socially, economically or politically, that group should be given special treatment, regardless of why it is disadvantaged (although it is implicit in the argument that the disadvantage is caused by discrimination), in order to redistribute the goods of the community more evenly." Finally the argument for social utility holds that the common good dictates that the various groups within a community should be reasonably matched politically, socially and economically in proportion to their size within that community 83-84 ld enjoy achievement comparable to all other groups in society. The inequality is caused by the discrimination and its social and economic effects. The vision, according to Sowell, is simply not justified because economic disparities or disadvantages, or even lawful systemic discrimination do not necessarily cause economic hardships Sowell is quick to point out that "in the United States, blackwhite separation has historically also included severe discrimination against blacks. 'Separate but equal' was a transparent legal fiction. Yet discrimination cannot be generalized from separation."'14 (emphasis in the original) He goes on to say that: [t]hose who dichotomize the reasons for intergroup differences into discrimination and innate inferiority (rejecting the latter, as they should) not only 'ignore many other specific reasons, but more generally proceed as if 'society' shapes groups themselves, in addition to making biased decisions about them.15 and: [t]he fatal flaw in this kind of thinking is that there are many reasons, besides genes and discrimination, why groups differ in their economic rewards and performances. 16 Ultimately what Sowell is trying to do is not to disprove that discrimination existed or still exists. Rather, he is trying to demonstrate that the assumption that statistical disparities are causally related to systemic discrimination, is flawed because it fails to control for, or even to acknowledge, the effects of various other group In the Canadian context, Conrad Winn has explored the same issues. He has found that: The problem of affirmative action is that it leaps from the reasonable premise that employment practices may have the latent effect of discrimination to the unproven conclusion that most, if not all, the difference among occupational achievements among groups is determined by the behaviour of employers. 84-85 AFFIRMATIVE ACTION: THE NATURAL LAW PERSPECTIVE – pg 88 The most essential single argument in favour of affirmative action is based on the idea of compensatory justice.29 Its aim is to award reparations for past injury to the group as a whole. In logic that is analogous to the theory of remedies in the law of contracts, the aim is to put a person who has been injured in the position he or she would have been in had the injury not occurred. The proponents of preferential treatment of particular social groups argue that while the individual who is given the preferential treatment may not have been discriminated against directly, past discrimination against his or her group as a whole has affected him or her indirectly to the point where the fact that he or she is from a disadvantaged group is considered as being caused by past discrimination against that group.3 0 There are several weaknesses to this idea of compensatory justice that, taken collectively, are fatal to it. The most significant weakness is the failure of the argument to distinguish between well-off members of the target group, who in point of fact are aided by affirmative action, and others in the group who are less well placed. The well-off are, in fact, a demonstration that discrimination or disadvantage could be overcome without affirmative action. Indeed, there are, of course, groups such as the Chinese and Jews who in many circumstances have faced legislated and social systemic discrimination but are very well off and seem to be able to achieve that status in many different cultural milieus. Pg 89 The social problems which native peoples face seem far more complex and intractable than those of others receiving preferential treatment, such as women. Arguably affirmative action programmes do little or nothing to address the cultural gaps which exist between their traditional mores and values and the modern western way of life. The problem is not simply one of facilitating job entry or skills acquisition. There are broader, more complex social questions that need to be explored. That study must embrace their needs as well as their desires in terms of maintaining a way of life that is acceptable to them, while at the same time promoting opportunities for integration which operate on a humane and just level. In this area much research, thought and consultation still needs to be done in order to develop meaningful answers to this seemingly immutable problem in Canadian society. Pg 100 – doesn’t matter written in 1990 Gallop, C. J., & Bastien, N. (2016). Supporting success: Aboriginal students in higher education. The Canadian Journal of Higher Education, 46(2), 206-224. Retrieved from 4528PQ/1?accountid=11233 This paper presents some of the findings of a qualitative study conducted in a midsized Canadian postsecondary institution. Findings from the study suggest that if Canadian postsecondary institutions are committed to retaining Aboriginal students, these institutions need to better understand how to create positive and supportive relationships between Aboriginal students and their peers and instructors. The development of these positive relationships then needs to be formalized and incorporated into both institutional planning and faculty instructional support. However, according to Pidgeon’s (2008a) research findings, success for Aboriginal peoples in postsecondary education also includes the “ability to maintain cultural integrity,” “finding their gifts,” and “responsibility of reciprocity.” Specifically, “maintaining cultural integrity,” involves “having a sense of oneself and keeping hold of one’s Indigenous understandings” (Pidgeon, 2008a, p. 143). An Aboriginal student’s ability to “find their gifts” was defined as the capacity to do whatever a person envisions for himself or herself (Pidgeon, 2008a). The “responsibility of reciprocity” is the ability to give back to larger Indigenous communities (Pidgeon, 2008a). As such, for many Aboriginal students higher education is recognized as an important tool for capacity building and assisting Aboriginal communities to achieve their goals of self-determination and self-government (Battiste, Bell, & Findlay, 2002; Danziger, 1996; Pidgeon, 2008a; Stonechild, 2006; Wildcat, 2001). Unfortunately, given that many Aboriginal students experience far more marginalization than their non-Aboriginal peers, they are more likely to face challenges navigating university and college systems, becoming fully engaged in their academic pursuits (Manifold & Rambur, 2001; Pidgeon, 2008a, 2008b; Pijl-Zieber & Hagen, 2011), and ultimately achieving success on their terms, and as they define - Stats about what percent of pop aboriginal people make up - Assimilation/residential schools - Factors Leading to Aboriginal Student Success - Programs working at other schools - Importance of aboriginal student center Cultural integrity is linked to the formation of cultural capital. For example, the college preparation program described in Tierney and Jun’s (2001) study connected students to social networks (i.e., peer groups, Aboriginal staff, and faculty) and developed students’ cultural capital (i.e., useable resources and skills) required to survive college. Although mainstream institutions have been criticized for lack of emotional and psychological supports (Wildcat, 2001d), this particular program is an example of how to meet the needs of Aboriginal students. (p. 351) Institutions that possess an Aboriginal student centre, focused on promoting culture-specific activities and resources, often produce outcomes that can lead to higher levels of Aboriginal student academic and social engagement. Subsequently, these centres contribute to retaining this group within the postsecondary education system (Guillory & Wolverton, 2008; Martin & Kipling, 2006). For example, providing an environment where Aboriginal students are able to participate in social and cultural activities such as powwows, potlucks, and outings, while building a network of Aboriginal peers, has been found to create a positive impact of belonging, acceptance, and validation of lived experiences (210) - Cultural identity - Self-efficacy Method - PAR has been described as a “process in which people (researchers and participants) develop goals and methods, participate in the gathering and analysis of data, and implement the results in a way that will raise critical consciousness and promote change in the lives of those involved” The participants for this study were chosen exclusively from a midsized Western Canadian postsecondary institution, where approximately 3.25% of the total student body identify as Aboriginal. The criteria included full-time or part-time students who were enrolled at the institution, who self- identified as Aboriginal, First Nations, Métis, or Inuit, and who were at least 18 years of age or older. By means of both convenience and snowball sampling procedures, the participants of this study were recruited through the contact persons at the Native student centre and the Aboriginal support centre. In addition, a number of recruitment posters were placed around the institution. In total, this study involved 14 Aboriginal student participants. Coincidentally, half of the respondents were female and half were male. The majority of respondents were between 18 and 24 years of age (almost 80%; n = 11), one was between 25 and 34, and two were between 35 and 44 years. Women and men were equally distributed in the different age groups. When asked about their family situation, none of the respondents indicated that they were married; almost 86% (n = 12) were living without another adult; and the remainder were cohabiting. Three of the women and two of the men had children, and all five noted that they were the primary caregivers. Of these, two of the participants, both women, were living with a partner, whereas the other three were living alone with their children. Half of the participants indicated they belonged to an Aboriginal community in Calgary, or in proximity to Calgary, which meant they could commute easily to the university. Conclusion This study developed from general observations and concern about the retention and success rates of Aboriginal students attending a midsized Western Canadian postsecondary educational institution. Regardless of how one measures “success,” the fact is the overall retention rate for Aboriginal students in Canada remains lower than for non-Aboriginal postsecondary students (Statistics Canada, 2008). This study is one step to understanding the academic experiences of Aboriginal students and what helps them to remain in school and feel supported. The findings of this study suggest that while concrete motivators, such as small class sizes and the availability of Aboriginal resources, encourage students to pursue postsecondary education, these factors are not specifically what maintain the students’ ability to remain in their programs. Instead, the quality of the relationships developed during their academic program may be as important, if not more important, to their eventual academic success. Given the great variance among Aboriginal communities in Canada, this study could not possibly capture all the experiences of Aboriginal learners. Further research involving a sampling of Aboriginal students across Canada would provide a better understanding of the specific institutional and instructional strategies needed to engage and retain Aboriginal students in higher education. If postsecondary institutions want to support Aboriginal students in achieving “success” in a meaningful way, what is needed is a better understanding of what “success” means for students in their individual institutions. The development of this new understanding then needs to be formalized and incorporated into both institutional planning and faculty instructional support Brooks, R. (2005). Affirmative Action in Higher Education: What Canada Can Take from the American Experience. Windsor Yearbook of Access to Justice 23(1), 193-228. Retrieved from file:///C:/Users/Megan/Downloads/23WindsorYBAccessJust193.pdf Group preferences in the form of affirmative action are presumptively constitutional under the Canadian Charter, but not under the United States Constitution. Yet, despite Canada's constitutionalpre- commitment to affirmative action, many Canadian political leaders continue to contest the propriety of affirmative action. The debate in Canada could intensify similar ways in which it has unfolded in the United States, and could, perhaps, influence the Supreme Court of Canada's interpretation of the Charter. Focusing on higher education, which has become the battleground for affirmative action in the United States, the author crystallizes some of the most important questions with which America courts have had to grapple in addressing the affirmative-action matter. Although the author suggests that the Supreme Court of Canada may wish to borrow from the American experience, just as lower Canadian courts have in the past, he also cautions that there are some aspects of the affirmative action question (such as defining exactly what diversity means) for which the United States Supreme Court has little to offer the Court's jurisprudence on affirmative action might develop in a way that is less presumptively permissible than what the Charter seems to allow. Thus, it might be useful to look at the approach to affirmative action taken by the United States Supreme Court in recent years. Some of the conceptual issues broached in the Court's decision-making may find their way into the deliberations of the Supreme Court of Canada. This article endeavours to give Canadians a close and, at times, critical analysis of the American approach to affirmative action. Focusing only on higher education and race-based affirmative action,' 4 the article considers the manner in which the legality of such affirmative action is determined under the United States Supreme Court's most recent jurisprudence - to wit, the diversity rationale. Assuming, arguendo, that the Canadian Charter does in fact apply to a given college or university, 15 the Supreme Court of Canada may wish to consider how its counterpart to the South has dealt with the myriad thorny questions that can arise in this area of the law. The following exemplify such questions: What is the meaning and true educational value of diversity? Does race continue to matter in today's society? To what extent, if any, should international norms influence domestic judicial decision making on matters of race? How does affirmative action intersect with socio-economic class? Do racial preferences stigmatize its intended beneficiaries, minority students? How predictive are standardized admissions tests? If colleges did away with standardized tests or gave them less weight, would that not make the problem disappear? Are minority students better off attending less challenging schools; in other words, are "cascading", a sound educational policy? Are there race-neutral alternatives to traditional, race- based affirmative action that ought to be considered prior to engaging affirmative action? Interestingly, Canadian courts have addressed some of these questions not in "positive discrimination" cases but in routine discrimination cases brought against universities and, in so doing, have relied upon statistical information involving African Americans. +article is interesting because it discusses Justice Clarence Thompson and his decision in Virginia v. Black but the author alludes that his opinion is taken less seriously in other matters, for example, affirmative action because he is black (pg.201). The aim of the program is to obliterate their racial identities. For that reason, an affirmative action program that incorporates a cultural assimilation concept of diversity is easy to run. Similar, an admissions committee operating under cultural pluralism would seem to have very little to do. The committee's diversity decisions would naturally conform to the identity of the institution. White schools would care little about the background of non-white candidates. Their main objective would be to admit just enough nonwhites so as not to change the racial identity of the school. African American and Latino schools would proceed in a similar fashion to maintain their school's identity.70 On the other hand, if transculturalism is the operative principle underpinning the Court's concept of diversity, then Professor McGowan's observations are quite relevant. The diversity of the applicant's background is certainly important when the university is viewed as an important venue for the lateral transmission of values. Hence, it matters which form of diversity the Court has in mind. Traditionally theorized, the concept of educational diversity can be problematic in a different way. It can suggest to minority students that the primary reason for which they have been admitted to their college or university is to provide a "diverse" educational experience for white students. Their value on campus is thereby measured by the benefit they provide to white students. This is most likely to be suggested under transculturalism. Cultural assimilation can suggest something more sinister: that minority students are on campus to be converted from perverse cultural proclivities. If not carefully constructed, then, the traditional theory of educational diversity can be racially subordinating. – different terms for different assimilation felt by international students The Court's 'conservatism' showed in other ways as well. For example, Justice O'Connor had already ruled that diversity constitutes a compelling state interest in the context of education. 76 Hence, she simply followed her own precedent in Grutter. Also, the felt necessities of the time seemed to favour diversity.77 The nation's elites made sure the justices understood what the expectations or norms of the national community were on this important matter by filing hundreds of amici curiae briefs in the case. Briefs supporting diversity were filed by 81 college presidents and professional organizations, such as the American Psychological Association.7 8 Amici curiae briefs filed by 83 Fortune 500 companies79 "made [it] clear that the skills needed in today's increasingly global marketplace can only be developed through exposure to widely diverse people, cultures, ideas, and viewpoints." 8° Similarly, amici filed by General Norman Schwarzkopf and other "high-ranking retired officers and civilian leaders of the United States military assert[ed] that, 'based on [their] decades of experience,' a 'highly qualified, racially diverse officers corps ... is essential to the military's ability to fulfill its principle [sic] mission to provide national security." 81 Even the United States' amicus curiae brief saw the value of diversity, stating "nowhere is the importance of [racial and ethnic] openness more acute than in the context of higher education". 82 Given this high degree consensus among America's elites, Grutter produced a safe decision (page 206). the Court cites Sheet Metal Workers v. EEOC92 without disparaging the use of quotas in that case. 93 Sheet Metal Workers upheld the district court's imposition of a contempt citation on a recalcitrant union that had blatantly ignored nearly a decade of court orders to cease discriminating in violation of federal statutory law. In addition to fines, the contempt citation included an affirmative action plan that required the union to admit a certain percentage of African American and Latino workers. That certainly falls within Grutter's definition of a quota.94 Sheet Metal Workers and other cases in which the Court has upheld racial quotas seem to suggest that district courts can impose quotas on recalcitrant or foot- dragging defendants as a means of enforcing their orders. 95 1 doubt Grutter changed this law. (page 207) Two problems can arise when the Supreme Court relies on international norms. 102 First, the Court may opt to 'cherry pick' among the myriad international conventions, leaving lawyers with no sense as to its method of decision making in this arena. Second, if the international norms the Court embraces run counter to or are otherwise inconsistent with domestic norms, Americans may have a difficult time accepting the legitimacy of the Court's ruling. Americans would not, for example, accept quotas, the use of which is permitted in some countries, such as France. 10 3 A judicial decision that goes against the grain of society may be too activist for citizens to accept (208-209) In United States v. Virginia, the Court held that Virginia's public military institution ("VMI"), which afforded unique educational opportunities exclusively for men, violated the Equal Protection Clause. 19 The Court also held that the single-gender military institution Virginia established for women did not remedy the constitutional violation - it was not an "exceedingly persuasive justification" for the gender exclusion, the Court ruled' 21 - because it offered women a "substantially unequal" educational program ( Justice Thomas recused himself from Virginia, because his son attended VMI- outlook p.212 Yet, as Justice Thomas notes, "lihe Law School itself admits that the test is imperfect, as it must, given that it regularly admits students who score at or below 150 (the national median) on the test." 13 1 Indeed, according to the Department of Education, the rigor of a student's highschool curriculum is a better predictor of whether a student will graduate from college than either test scores or high-school grades (pg,212) This view is shared by most college presidents. The President of Williams College, for example, has found that "rank in class and the degree to which applicants have taken the strongest academic program offered at their schools" are "the best measures" of "academic potential." Based on these measurements, he concludes, "Williams students of colo[u]r closely resemble the student body as a whole." 133 Not surprisingly, then, the black graduation rates at most elite colleges are very high. For example, the rate is 92% at Harvard and Amherst, 91% at Vassar, 90% at Princeton, 88% at Brown, and 87% at Yale. (212-213) In the case of minority students, such "cascading" may not, however, be good educational or social policy. Elite schools are portals to the best jobs in our society. Cascading obviously reduces minority presence at elite schools and, hence, entry into the top tiered occupations. Indeed, minority admissions to elite colleges and graduate schools have largely been responsible for the creation of the black middle class during the thirty-year period after the civil rights movement (213) Several additional studies contradict Justice Thomas's argument that affirmative action beneficiaries attending elite colleges are "mismatched" and, therefore, are better off "cascading." One study focuses on the opinions of corporate executives regarding standardized tests, the elimination of which would presumably make affirmative action unnecessary. Interviews were conducted of 200 Fortune 1000 executives. Only 4% of these corporate CEOs, COOs, and chairpersons of boards of directors believed the SAT and similar standardized tests were good predictors of long-term success in corporate America. Furthermore, of those executives who could remember their SAT scores, 37% scored in the 1000-1299 range. According to DYG, Inc., the polling company, this finding "mirrors precisely the talent pool of meritorious applicants who possess enormous promise yet whose prospects of being admitted to top- tier institutions are diminished by undue reliance on SAT and ACT scores." 142 Two additional studies should also be noted: Jesse Rothstein, a Princeton economist, conducted the first one. It shows that minority and white students from low-income families earn lower first-year grades in college than minority and white students from high-income families even when the SAT scores of both groups are similar. The study concludes that socio-economic and educational backgrounds are better indicators of academic success than SAT scores. 143 A final study of elite schools shows that students admitted with an "unacceptable" SAT score of 1,000 "earned grades averaging roughly B," while students admitted with scores at the school-wide average of 1289 "earned college grades averaging roughly B+... . Anyone who has graded undergraduates knows that this is not a large difference. Indeed, it is the smallest difference that most college grading systems bother to record." 144 Tobias Wolff makes an intriguing argument. He asserts that the distribution of higher educational resources in a way that rewards applicants who have already made effective use of educational opportunities is neither necessary nor a morally superior result. Rewarding merit, instead, is a distributive choice in the allocation of scarce educational resources. 145 Unfortunately, Justice Thomas does not address these counter-arguments (214-215). Justice Thomas committed a common statistical error in making his argument. He relied solely on 'snapshots' (pictures of years in isolation, in this case 1996 and 2002) rather than on trends, or even supplementing snapshots with trends. Using snapshots to make statistical arguments can be misleading when the years selected for analysis are not representative of the years omitted from the analysis. Thus, the best way to characterize statistical information is to look at average numbers and trends over time. 148 Luckily, the website from which Justice Thomas drew his information provides enough data to enable the reader to construct relevant trends. (215) Justice Scalia argued that such pluralistic expressions as "minority-only student organizations, separate minority housing, [and] separate student centers... , challenge the bone fides of an institution's express commitment to the educational benefits of diversity." 154 By diversity, Justice Scalia seems to have in mind cultural assimilation, 155 but his argument also works with transculturalism. 156 Both contemplate racial mixing - a linear process under the former 157 and a dynamic process under the latter 58 - yet cultural pluralism does not.1 59 It could be argued that the Grutter-approved critical mass concept endorses cultural pluralism 160 because once admitted en masse, underrepresented minorities will demand and are usually provided structures of self-support, such as culturally identified student centers and housing. These pluralistic traditions are deemed necessary for the educational success of minority students. Indeed, a study presented at the annual meeting of the American Psychological Association found that strong ethnic identity among black students contributes significantly to superior academic performance. (216-217) He favours, in particular, "[t]he facially race-neutral 'percent plans' now used in Texas, California, and Florida."169 Of course, percentage plans can only apply at the undergraduate level; they are not applicable to law schools. Nonetheless, the issue is clear: Are these plans as effective as race-based affirmative action in providing opportunities for minority students, particularly at elite institutions? That is the question to which we now turn (217) As will be seen, there is considerable controversy as to whether these alternative programs are as effective as race-based affirmative action in creating educational opportunities for African Americans, Native Americans, and Latinos. Statistical support for almost any position can be found. My own view is that traditional affirmative action is still necessary today and will remain so as long as we can say that race still matters (218) - Goes over percentage plans - Socio-economic (or "Whole-Person") Affirmative Action - Conclusion Baker, R.B. (2009). Balancing Competing Priorities: Affirmative Action in Canada and The United States. Transitional Law and Contemporary Politics, 18(3), 528-543. Retrieved from file:///C:/Users/Megan/Downloads/Balancing_competing_priorities%20(2).PDF This Article presents a detailed analysis of equality rights in the United States and Canada and their relationship to race-based government affirmative action programs (1) as practiced in those two countries. At the outset, the term "equality rights" requires a definition, for although the term appears extensively in Canadian legal scholarship, that precise term is used less frequently, if at all, in the United States. (2) At its most basic level, the term "equality rights" expresses the idea that a government must not discriminate against its citizens by treating some of them differently from others. (3) Given this general definition of equality rights, the question becomes how to reconcile this concept with that of race-based affirmative action programs. After all, the goal of race-based affirmative action programs is to ameliorate the past effects of discrimination on formerly disenfranchised minority groups by affirmatively assisting those groups in competing with the majority for opportunities within society. The American and Canadian approaches to equality rights exist at opposite ends of the spectrum. The American definition of equality rights has become highly formalistic and requires that the government not discriminate against select citizens, by--save for the most narrow of circumstances--attempting to treat all equally under the law. In taking the equal treatment for all citizens as its point of departure, U.S. equality-rights jurisprudence has resulted in a piecemeal approach to affirmative action programs. In contrast, the Canadian approach starts with the idea of ameliorating past discrimination rather than subscribing to a formalistic definition of equality rights as equal treatment under the law. This results in a much more favorable judicially constructed framework for government affirmative action programs. The Canadian approach refines the definition of equality rights to a highly substantive one, holding that the government must not discriminate against select citizens through redefining the very meaning of what discrimination entails. Unequal treatment at the hands of the law alone does not constitute discrimination; rather, discrimination is a violation of "human dignity" by excluding a group solely for the purpose of exclusion. Under this definition, exclusion of majority groups for the sake of ameliorating past discrimination--as opposed to excluding just for the sake of excluding--is no longer discrimination. Just as with the American approach, however, there is a tradeoff: the Canadian approach is much less inclined to take seriously dissenting arguments that such programs force the state, in looking to assist formerly disenfranchised minorities, to treat its citizens unequally. - In the US debate around affirmative action “centered upon the proper judicial standard of review required to give effect to these rights.” Rational Relationship Test - Under this test, the court asks only whether the challenged law bears a rational relationship to a legitimate, i.e., constitutional, government interest. (11) The legislative history of the challenged law does not have to articulate a legitimate government interest. As long as there is some conceivable government purpose in the enactment of the legislation, the court considers it "irrelevant whether ... [such] reasoning in fact underlay the legislative decision." (12) If a court finds a rational relationship, which it nearly always does, it upholds the classification in the challenged law as valid and not violative of the equal protection guarantee. Clearly, when employing the rational relationship test, American courts are extremely deferential to the actions of the legislative branch. Under the intermediate scrutiny test, the government must show that the challenged law has a substantial relationship to an important government interest. (14) Intermediate scrutiny review can be thought of as a middle ground (15) between the extreme deference of rational basis review and the extreme rigor of strict scrutiny review. (16). Under the strict scrutiny test, the government must establish clearly a compelling state interest that justifies and necessitates the challenged law. (20) The government can establish a compelling state interest only if that interest overrides the interests of the individuals against whom the law discriminates. (21) Even if the government proves that a compelling state interest exists, the court will not uphold the challenged law unless it independently determines that the classification(s) employed by the law are narrowly tailored to promote the compelling government interest American courts employing the strict scrutiny test generally remain very wary of the stated government motivations behind the challenged law, and generally strike down legislation reviewed under this standard In the landmark decision of Adarand Constructors, Inc. v. Pena, (26) the U.S. Supreme Court ruled on two issues important to the discussion of race-based affirmative action programs. First, it overturned a ruling it had made only five years earlier (27) and held that the standards of review used to determine whether a law violated the equal protection guarantee were the same under both federal law, through the Fifth Amendment Due Process Clause, and state law, through the Fourteenth Amendment Equal Protection Clause. (28) Second, the Court held that race-based government affirmative action programs (i.e., "benign" racial classifications) should be reviewed under the strict scrutiny test. (29) Affirmative Action Programs Can Survive Strict Scrutiny Review, per Justice O'Connor in Adarand Justice O'Connor felt that a government affirmative action program could indeed pass the strict scrutiny test. She disagreed with the notion that legislation reviewed under the strict scrutiny test, especially race-based government affirmative action programs, was almost never upheld:. Two points should be noted regarding Justice O'Connor's invocation of Paradise. First, it cannot escape notice that Justice O'Connor can cite Paradise as the single instance at the Supreme Court level where a race-based government affirmative action program survived the strict scrutiny test. Second, despite Justice O'Connor's claims to the contrary, Paradise itself did not answer conclusively the question of whether a race-based government affirmative action program could ever pass strict scrutiny review. The majority decision in Grutter- held that the University of Michigan Law School's admissions program, with its emphasis on racial and ethnic diversity, indeed qualified for heightened strict scrutiny review. (48) In applying the strict scrutiny test, the majority found that, first, encouraging racial diversity in higher education constituted a suitably compelling government interest to justify the use of racial classifications; (49) and second, that the admissions program employed by the University of Michigan's Law School was in fact narrowly tailored to the government interest of promoting diversity in higher education. (50) The majority held that the program was narrowly tailored because it did not employ a quota system, (51) but instead considered each applicant for admission on an individual basis, and therefore survived strict scrutiny review. (52) While the majority felt that the University had not explored every single race-neutral alternative to the admissions scheme they had devised, it also found that "narrow tailoring d[id] not require [the] exhaustion of every conceivable race-neutral alternative." III. THE CANADIAN APPROACH: DIVERSITY OVER EQUAL TREATMENT Equality rights are guaranteed in Canada by s. 15(1) (54) and s. 15(2)(55) of the Canadian Charter of Rights and Freedoms. Sections 15(1) and 15(2) of the Charter apply to both the federal and provincial levels of government. The equality rights guaranteed in ss. 15(1) and 15(2) define equality as protection against discrimination (56) through the amelioration of its past effects, (57) rather than simply a formalistic definition of equality before the law, as in the United States. The unanimous opinion in Lovelace, written by Justice Iacobucci, decided two very important issues. First, the Court set the criterion for the promotion of equality in Canada by providing a precise mechanism for promulgating the equality rights enshrined in ss. 15(1) and 15(2). Second, the Court determined whether s. 15(2) was an exception to s. 15(1) or rather a clarification of it. In Justice lacobucci's view, in determining the equality, or lack thereof, of race-based government affirmative action programs, the courts should not reduce themselves to balancing competing interests, but rather should focus on what the program is, or is not, achieving. The test of whether the government has met the equality burden then lies in the corrective result of the program, not on the effects its ameliorative goal may mete out in the form of unequal treatment. Justice Iacobucci defined the prime motivation behind s. 15(1) as "protect[ing] against the violation of essential human dignity." (67) Equality rights were not defined as equal protection under the law, but rather as the possession of self-respect and self-worth. The precise relationship between dignity and equality was described by Justice Iacobucci in the following terms: + definition for dignity and equality The analysis focuses on whether the program singles out the "personal traits" of the challenging party, "marginalizing" and "devaluing" it, thereby violating s. 15(1), or whether the program ignores the "personal traits" of the challenging party and instead simply seeks to ameliorate past unequal treatment of a disadvantaged group, thereby not violating s. 15(1). Justice Iacobucci conceded that a race-based government affirmative action program that simply sought to ameliorate past unequal treatment of disadvantaged groups could, in some cases, result in discrimination against advantaged groups at the expense of disadvantaged groups; however, the Court held that such discrimination did not violate s. 15(1) because the advantaged group was not targeted for specific discrimination and thus was not robbed of its human dignity The Relationship Between Section 15(1) and Section 15(2) in Lovelace Delving into the drafting history of the Charter, Justice Iacobucci found that s. 15(2) acted as a clarification of s. 15(1) rather than an exception to s. 15(1). (70) The substance of this view is found in Justice Iacobucci's analysis of equality rights, described above. (71) Justice Iacobucci does not hold race- based government affirmative action programs as per se violations of s. 15(1) that are then saved by s. 15(2). Instead, such programs are upheld under s. 15(1) via Justice Iacobucci's substantive definition of equality. Given this understanding, the question becomes what purpose s. 15(2) serves. Peter W. Hogg, former Dean of the Osgoode Hall Law School of York University, Toronto, offers the following explanation: [Section] 15(2) has no independent work to do, but is not redundant. It is there out of an abundance of caution in order to clarify that the purpose of s. 15(1) is to promote equality in a substantive and not merely a formal sense. (72) Justice Iacobucci reads s. 15(2) as a clarification of s. 15(1) rather than as an exception to it. If race-based government affirmative action programs were per se violative of s. 15(1), then the burden of proving whether such a program was saved under s. 15(2) would rest with the government rather than with the challenging party. (73) To that end, the standard of review is also of consequence. In Canadian constitutional jurisprudence, courts must construe narrowly the government's defenses to an otherwise prohibited Charter standard, with the government facing a high burden in defending its infringement. (74) However, if race-based government affirmative action programs are not per se violative of s. 15(1), as is the case, then the burden of proving that such a program violates s. 15(1) rests with the challenging party. This gives the government greater latitude in enacting such programs. (75) The standard of review in such an instance is "a generous rather than a legalistic one," that seeks the "full benefit" of the Charter's protections for individuals. (76) Substantive Equality vs. Formalistic Equality Confusing/not well written Compare this reasoning to that undertaken by Justice Iacobucci, who argues that government has a role to play in the promotion of formerly disenfranchised minority groups. In fact, according to the Lovelace approach, a race-based government affirmative action program can violate the ss. 15(1) and 15(2) guarantees if it does not go far enough to promote diversity (79) and remains underinclusive of disadvantaged groups. Justice Thomas, conversely, feels that government has no role to play in the promotion of formerly disenfranchised minority groups. "Government cannot make us equal," Justice Thomas states; rather, "it can only recognize, respect, and protect us as equal before the law." Standards of Review: Balancing Test as a Shield vs. Balancing Test as a Sword 1. Balancing Test as a Shield in the United States Under the American approach, the strict scrutiny test requires the government to establish that it has a compelling interest that justifies and necessitates the race-based affirmative action program in question. Upon review, the courts balance the government's interest in the challenged law against the constitutional right of individuals to be free of the law, and then determine if the law is narrowly tailored to the compelling government interests of remedying past discrimination or encouraging racial diversity in higher education. As this Article notes, American courts rarely uphold legislation scrutinized under the strict scrutiny test. Therefore, the balancing test employed by American courts can be seen to act as a shield protecting equal protection guarantees against the unequal effect of race-based government affirmative action programs. 2. Balancing Test as a Sword in Canada All of the rights and freedoms guaranteed by the Charter are subject to override by s. 1 of the Charter. (81) An s. 1 override works in a two-step process. Step one involves a determination of whether the challenged law infringes upon one of the protected rights in the Charter, i.e., whether the challenged law is unconstitutional. (82) If the answer is affirmative, step two of the analysis then asks whether the limitation is reasonable. (83) As such, none of the rights protected in the Charter is absolute, but rather each is subject to an internal test of reasonability. The s. 1 override can be thought of as the Canadian answer to the strict scrutiny test employed by American courts, but with the very important caveat that it works in reverse. Usually, American courts employ the balancing approach of the strict scrutiny test to invalidate a law passed by the government. In Canada, however, the government uses the s. 1 override to attempt to save a law that it has enacted--to, in effect, "override" the initial judicially determined unconstitutionality of the challenged law. Thus, in the near future, if there is any movement in the Canadian courts toward interpreting equality rights on a more formalistic basis, similar to the United States, the s. 1 override could be available as a safeguard. The actual judicially crafted test used to determine whether the per-se unconstitutionality of a law can be "overridden" via s. 1 of the Charter was described by the Supreme Court of Canada in R. v. Oakes. (84) The Oakes test requires a two-part analysis. Part one involves determining whether the challenged law is of such "pressing and substantial" concern as to warrant an s. 1 override (this proviso sounds strikingly similar to the compelling state interest test in American strict scrutiny analysis). (85) Part two requires the government to demonstrate that the means chosen are proportional to their objective. (86) The government can demonstrate proportionality by showing a rational connection between the methods of the challenged law and its objectives (which sounds similar to the rational relationship test). (87) The Canadian courts then apply a balancing test between the objectives of the challenged law and the effects of its measures that limit Charter rights and freedoms (which sounds strikingly similar to the strict scrutiny test requirement that the stated government objective be narrowly tailored to promote the compelling government interest). (88) A challenged law will be upheld only if it limits Charter rights and freedoms as little as possible V. CONCLUSION Each national approach, in trying to reconcile the idea of equality rights with the need to address past racial discrimination, ends up trading one objective for the other in an imperfect attempt to balance what, in the end, cannot be balanced. The imperfect result is, on the one hand, an American approach too concerned with a formalistic definition of equality as equal treatment under the law; and on the other hand a Canadian approach too concerned with a substantive definition of equality, which ignores the very real effects that affirmative action programs can have in creating an environment that allows the state to treat its citizens differently from one another. two national approaches to equality rights are not due to the internal mechanics of different judicially imposed tests. In fact, the judicially imposed tests are quite similar. Rather, the difference of approach is due to the external constitutional mechanics of the American system, which views equal protection under the law as an absolute right and freedom, and the Canadian system, which views the amelioration of past discrimination of minority groups as a compelling enough goal to allow for the potential limitation of other rights and freedoms. Garfeild, L. Y. (2013). The Inevitable Irrelevance of Affirmative Action Jurisprudence. Journal of College and University Law, 39, 1-50. Retrieved from file:///C:/Users/Megan/Downloads/39JCUL1%20(1).pdf In this article, I am proceeding on the assumption that, in its decision, the Court will not abolish affirmative action programs wholesale, if it addresses the merits of Abigail Fisher's challenge. Considering the present makeup of the Court following Fisher, colleges, universities, and graduate schools will remain free to pursue the Court's previously announced goal of admitting individual students who, as a group, present a critical mass of diverse viewpoints.2 To meet this goal, those institutions that take race into account in the admissions process must create programs that are narrowly tailored to achieve the compelling governmental interest in what has come to be considered viewpoint diversity, an assurance of otherwise underrepresented voices in the classroom. institutions of higher education have become so consumed with the goal of achieving the highest possible ranking that they are uninterested in constructing constitutionally permissible race-preference admissions programs, even in light of the Court's continued guidance on the matter. Katchanovski, I., Nevitte, N., & Rothman, S. (2015). Race, Gender, and Affirmative Action Attitudes in American and Canadian Universities. The Canadian Journal of Higher Education, 45(4), 18-41. Retrieved from file:///C:/Users/Megan/Downloads/out%20(12).pdf 1999 North American Academic Study Survey The findings indicate that national factors are more important than positional factors on many racial and affirmative-action issues. Differences between students and faculty are more pronounced than are cross-national variations on many gender-related issues. The American and Canadian histories concerning race are quite different and each nation has adopted quite different approaches concerning the affirmative-action policies in higher education. Both countries, however, share strikingly similar histories when it comes to gender matters (Lipset, 1990). This article explores the following questions: to what extent are there cross-national similarities and differences in faculty and student attitudes towards race, gender, and affirmative-action issues? To what extent, if at all, do minorities and women in higher education institutions on both sides of the border differ from their white and male counterparts? And, more generally, how similar or different are their evaluations of the academic climates for minorities and women? The focus is on faculty and student responses to matching surveys carried out in Canada and the United States. The historical experiences of both countries suggest that faculty and students in the US and Canada may well differ on racial issues and support for affirmative action. But when it comes to attitudes towards gender-related issues outlooks are more similar. Canada provides a useful point of a comparison with the US because the economic, political, and value systems of these countries are strikingly similar. These similarities are also mirrored in important respects in the evaluation of their systems of higher education. Postsecondary educational opportunities in both countries expanded rapidly during the late 1960s and early 1970s, and both countries have similar proportions of adult population with postsecondary education. By 2009, 50% and 41% of the population aged 25 to 64 years old, respectively, in Canada and the US. held postsecondary qualifications. Further research reveals another significant similarity in the academic cultures of the two countries: a substantial proportion of Canadian faculty received formal training at American universities and a significant number of Canadian faculty are American immigrants with American higher degrees. Although an overwhelming number (88%) of faculty members in Canada are Canadian citizens, 40% of employed university teachers are immigrants and non-permanent residents. (CAUT, 2006, p. 19). According to data from NAASS, 12% of faculty members in Canada were born in the US, and 28% of faculty received their highest degree there. Academic subcultures in different fields, institutional factors (such as program and institution type), and academic characteristics (such as tenure and academic achievement status), have also been shown to significantly relate to faculty and student attitudes toward racial, gender, and affirmative-action issues. since the 1980s that gap has closed. Can
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