Lesson 7: Equal Protection: RaceTopic: Should we use affirmative action as a remedy for discrimination? Background: Of all of the remedies designed to combat discrimination, none has presented as complex issues for the courts as affirmative action. Perhaps the remedy itself is not as problematic as the impact it has on those who fail to benefit. Where affirmative action seeks to remedy past instances of discrimination by giving minorities an advantage in certain circumstances, non-minorities in the same circumstances are necessarily disadvantaged. Proponents argue that there is ample justification for this. America's reprehensible history of discrimination against racial minorities is a matter of historical record. Affirmative action is a form of compensation for these wrongs, allowing minorities preferences in arenas to which they have been denied access in the past. Over the course of time, these programs have had a significant impact on increasing minority presence in desirable areas of employment and education. From its inception however, affirmative action has had many vocal opponents. Despite the enormous achievements of minorities, in part due to benefits conferred on them by these programs, critics argue that affirmative action creates discrimination in reverse, no less repugnant to the Constitution and notions of individual rights. Opponents believe that such aggressive, proactive policies like government-sponsored affirmative action, although remedial in nature, present a formidable legal challenge to principles of equality. Much of the controversy engendered by conflicting views of minority preferences has been defined by the courts as an equal protection problem. The first time the Supreme Court applied the Equal Protection Clause of the Fourteenth Amendment to a state affirmative action program was in Regents of the University of California v. Bakke. Because the Court was badly fragmented on this issue, there was no majority opinion. In addition, the legal principle for which the case stands has never been fully understood. The affirmative action program itself was struck down by the Court as a violation of Title VI of the Civil Rights Act of 1964. What took on importance in Bakke though, was the strong admonition of Justice Powell that courts use nothing less than a strict scrutiny standard to review the constitutionality of affirmative action programs in school admissions. Although the more liberal faction of the Court suggested a lower level of scrutiny in instances of "benign" discrimination used for remedial purposes, the stage was set for the strict scrutiny review and to date courts have consistently applied this standard. Of the numerous affirmative action cases, this moot court proceeding will concentrate on three opinions. It will begin with the Bakke case and then consider the Supreme Court's 1995 analysis of Adarand Constructors Inc. v. Pena, applying the equal protection component of the Due Process Clause of the Fifth Amendment to a federally sponsored affirmative action program involving government employment contracts. Lastly, the Fifth Circuit's recent interpretation of Bakke in Hopwood v. Texas, will be examined for its chilling effect on the future use of quotas, set asides and admissions preferences, as well as remedial efforts in general. These waters are indeed difficult for students to navigate. The moot court proceeding itself provides students with valuable insight into the appeals court process and a Supreme Court hearing. But the affirmative action decisions, especially with regard to strict scrutiny analysis, present a myriad of complex issues for students to understand. Several approaches are therefore suggested to accommodate the needs of students. It is left to the teacher to assess the capabilities of the class and to select the approach best suited to the individual group of students. (See Appendices) Objectives: After participating in a moot court hearing involving three affirmative action decisions, students will be able to:
Materials: Handout 7A "Bakke Case visual" Handout 7B "Background of the Affirmative Action Cases" Handout 7C "Summary of the Decisions of the Court" Handout 7D "Introduction to a Moot Court Hearing" Handout 7E "Arguments" p. 1 "Arguments for Appealing Litigant Team" p. 2 "Arguments for Supporting Litigant Team" p. 3 "Instructions for the Panel of Judges" Alternative Approaches Time Required: 2-3 class periods Procedures: Distribute Handout 7B "Background of the Affirmative Action Cases" and Handout 7C "Summary of the Decisions of the Court." Have students read and study these handouts carefully. Divide the class into groups of nine students each. Three students in the group will serve as lawyers for the appealing litigant team advocating the use of affirmative action programs. Another three students will serve as lawyers for the supporting litigant team opposing the use of affirmative action cases. The remaining three students will serve as a panel of judges who will make a decision in the case. Distribute Handout 7D and have students read and study the handout. Distribute Handout 7E. The appealing litigant team will read and study Handout 7E pg. 1. The supporting litigant team will read and study Handout 7E pg. 2. The panel of judges will read and study Handout 7E pg. 3. If possible, lawyers who are familiar with the affirmative action decisions should be asked to serve as resource persons. Before beginning the moot court, all students assigned to a panel of judges will meet and discuss the three affirmative action decisions based on all the materials they now have. The same will occur for all students who are assigned to appealing litigant teams and supporting litigant teams. After completion of these meetings, the students will reconvene in their assigned groups, complete their research and prepare their arguments or questions. Students must consult with the other members of the team during preparation. The oral arguments are a joint effort. Once the preliminary sessions have been completed, the moot court will begin. The moot court will take several class sessions and may also involve outside research and preparation. In this first approach all three cases will be heard by each group. The appealing and supporting litigant teams will each have five minutes to present their arguments and answer questions posed by the judges. Appealing litigant team members will present their arguments first, followed by supporting litigant team members. One or all of the team members may present oral arguments. The judges may interrupt and ask questions at any point during a student's argument. The five-minute time period may be extended at the discretion of the judges. Teams may reserve a part of their total argument time for rebuttal. Rebuttal is used to counter the opponent's arguments and not to raise new issues. The rebuttal portion may or may not be included in this exercise depending upon time constraints. After completion of the oral arguments, the judges will retire to their chambers (the corners of the room) for five minutes to discuss the issue and reach a decision. The decision will be determined by a majority vote of the judges.
After students have completed the moot court hearing have them explain their answers to the following questions:
Performance Assessment: Students should prepare a short written brief consisting of the following elements that we studied in previous lessons
Further Enrichment: Based on multiple intelligences theory Linguistic: Students should create a semantic map in which they write all the words that come to mind when they hear the term "affirmative action." Students should be prepared to discuss why they selected certain words. Students should write a postcard in one or two sentences to a friend expressing their feelings about affirmative action. Interpersonal: Divide the class into groups of three. Each member of the group will be responsible for one of the three affirmative action cases in a jigsawing exercise. Each group will prepare a magazine article about affirmative action that includes a discussion of all three cases. Intrapersonal: Students should prepare a split journal using one of the three affirmative action cases. Divide a sheet of paper into two columns. In one column, list the facts and issues in the case. In the other column, they should explain their feelings about the case. Students should also rate the intensity of their feelings on a scale of 1-5, with 5 being the most intense feeling. Students should be prepared to explain why they feel as they do. Logical/Mathematical: The class should research the percent of minority students accepted into universities both before and after an affirmative action program and note the change. Spatial: Students should draw a visual representation of one of the three affirmative action cases. Students should draw an advertisement or poster supporting or opposing affirmative action. Bodily Kinesthetic: Students could simulate a panel discussion with one student stating the arguments in favor of affirmative action, another student stating the arguments against affirmative action and a third student presenting a moderate view including both the positive and negative aspects of affirmative action. After stating their views, the panelists could hold a press conference responding to questions from the class who act as reporters.
Handout 7A: EQUAL PROTECTION: RACE
Handout 7B: EQUAL PROTECTION: RACE A Background of the Affirmative Action Cases
Regents of the University of California v. Bakke 438 U.S. 265 (1978) In the first and perhaps best known of these cases, a white male named Allan Bakke applied to the University of California at Davis Medical School in 1973 and 1974. Despite strong grades and test scores, Mr. Bakke was rejected both times. During the years in question, the Davis Medical School maintained two admissions programs. The regular admissions program, from which Bakke was rejected, included 84 students. The special admissions program designated for minorities included 16 students. Among the 84 students admitted under the regular program, Bakke's record was average. But among the 16 students admitted under the special program, Bakke's record was superior. Bakke brought a lawsuit claiming that because the special admissions program employed a "quota" which reserved 16 spots for minorities, he was denied admission to the medical school based on his race and this violated his right to equal protection under the Fourteenth Amendment.
Adarand Constructors, Inc., v. Pena , 115 S. Ct. 2097 (1995)Several years later, another type of affirmative action program was used to select small businesses that would receive contracts to perform government jobs. This time, the federal government enacted a law requiring at least 10% of funds for highway projects to be "set aside" for small businesses owned and operated by "socially and economically disadvantaged" persons. The law presumes that such persons are women and minorities (although other individuals may qualify). Thus, a company in charge of a highway project, known as a general contractor, could receive a cash bonus from the federal government by "setting aside" some of the work for small businesses owned and operated by women and minorities. Adarand Constructors, Inc. is a small business specializing in highway construction that is owned by a white male. Although the company was willing to perform work as a subcontractor on a highway project at the lowest cost, a minority-owned small business was selected instead. In this way, the company in charge of the project qualified for a cash bonus from the federal government. Adarand brought a lawsuit claiming that the use of race as the sole criterion for the selection of small businesses to perform government jobs, violated his right to equal protection under the Fifth and Fourteenth Amendments.
Hopwood v. Texas 78 F. 3d 932 (5th Cir. 1996)In the third and most recent decision, the University of Texas Law School maintained a policy of coding applications by race and separating minority applications for review by a minority admissions committee. The school wanted to achieve an entering class that was 5% African-American and 10% Mexican-American. Admissions decisions were based on an index of grades and test scores. Students selected from the regular applicant pool were required to have a higher index than students selected from the minority applicant pool. Four white students who were rejected from the regular applicant pool in 1992, had a higher index than most of the students accepted from the minority applicant pool for that year. They brought a lawsuit arguing that the school's policy of establishing two different index scores based on race, violated their right to equal protection under the Fourteenth Amendment.
Handout 7C: EQUAL PROTECTION: RACE
Summary of the Decisions of the Court
Regents of the University of California v. BakkeThis case was decided by a very divided Supreme Court and produced no majority opinion. The Davis program was simply found to be a violation of Title VI of the Civil Rights Act of 1964 (see lesson 6), and on those grounds alone, it was declared invalid. This did not mean however, that all affirmative action programs would suffer the same fate. The program had to first be reviewed under the equal protection standards of review we studied in Lesson 1. The Court concluded that the highest level of scrutiny should be applied to affirmative action cases. Justice Powell, writing for the Court, believed that any program which places people in a separate category based on race, even if to benefit the minority race, creates a suspect category and must be reviewed using the strict scrutiny test. Using this level of review, the reason for the affirmative action program must be a compelling state interest and the program itself must be the only way to attain that interest. Under this test, most affirmative action plans would be declared invalid. Justice Powell further argued that the only compelling state interest for such a program is to achieve diversity in education. By contrast, a separate dissenting opinion in part, held that a lower level of scrutiny should be applied to affirmative action. The lowest level, the reasonableness test (see lesson 1), was considered too loose a standard to apply here where race was a crucial factor. An intermediate level of scrutiny appeared to be the solution. Since affirmative action only burdens the white majority, and the white majority does not need the same kind of special protection that racial minorities do, there is no need to apply the highest level of scrutiny. In these instances of reverse discrimination, where a government program can be described as "benign" with regard to racial minorities, a lower level or "intermediate" level of scrutiny is proper. Under this test, the reason for the program need only be "sufficiently important" rather than compelling, and the program itself need only be "substantially related" rather than the only way to attain that interest. Using this test, a greater number of affirmative action programs will be held constitutional. Although this is not the law, it is an alternative approach and a valid argument for the future of affirmative action.
Adarand Constructors Inc. v. Pena The Court held in a majority opinion, that strict scrutiny was the proper standard to use in reviewing affirmative action programs in federal government jobs. Preferential treatment for minorities posed a danger of creating an unfair racial category, even if designed to benefit a previously disadvantaged group. Moreover, affirmative action could stamp minorities with a badge of inferiority in addition to burdening the white majority. Thus, the federal government could not give special preferences to minority businesses when awarding contracts for jobs unless the program passed strict scrutiny. Under strict scrutiny, the reason for the program must be a compelling governmental interest and in the language of this Court, the program must be "narrowly tailored" in its method of attaining that interest. To prove that a remedy is narrowly tailored, the program must be limited to a specific time period and be imposed as a last resort, after all other solutions have been exhausted. In this instance, the Supreme Court sent the case back to the lower courts to determine if the "set asides" used here could pass such a high level of scrutiny. The Supreme Court did take this as an opportunity to establish strict scrutiny as the standard of review for all affirmative action programs regardless of whether they originate at the federal, state, or local level.
Hopwood v. Texas In this case, the Supreme Court denied certiorari (see the discussion of certiorari in Lesson 1-A), and never reviewed the University of Texas admissions policy. Thus, while Hopwood is good law in the Fifth Circuit, it does not have the same force and effect of either Bakke or Adarand. Although not the law of the land, the decision does suggest a trend regarding the use of race in admissions policies in higher education. Like Bakke and Adarand, the court reached the conclusion that the strict scrutiny test must be applied to affirmative action programs that use race-based solutions as a remedy. The Fifth Circuit then departed from Bakke by rejecting Justice Powell's argument that achieving diversity in education is a compelling state interest. Under Hopwood, the use of race to achieve a diverse or ethnically mixed student body is not an interest compelling enough to justify the admissions policy adopted by the law school. Only the school's interest in remedying the present effects of past discrimination would be sufficient to pass strict scrutiny. Here, according to the Fifth Circuit, the law school was merely trying to remedy the present effects of past discrimination by the Texas Public School System in failing to prepare minorities for the competitive process of gaining admission to professional school. Since the law school itself had not engaged in the discriminatory behavior, they could not demonstrate a compelling state interest and the admissions policy was struck down. It is difficult to predict how much of Hopwood the Supreme Court and other jurisdictions will be inclined to follow. Handout 7D: EQUAL PROTECTION: RACE
Introduction to a Moot Court Hearing
A moot court is patterned after an appeals court or Supreme Court hearing. Unlike a trial, no witnesses are called and no testimony is given. Students, acting as attorneys, present oral arguments before a panel of student judges. The judges then make a decision based on the strength of the arguments.
Team Instructions During the moot court exercise, the class will be divided into groups of nine students each. A separate hearing will be conducted by each group, with several hearings occurring at once. Each group will be subdivided into three teams. Each team will be asked to serve as either appealing litigant's attorneys, supporting litigant's attorneys or the panel of judges. The appealing litigant team argues against the decision of the lower court and will make its presentation first. The supporting litigant team argues in favor of the decision of the lower court and will make its presentation following the appealing litigant team. The panel of judges will then consider all of the arguments that each team has made, including the responses to questions, and decide which team is most persuasive.
Instructions for the Preparation of Arguments Each team will have five minutes to present its arguments. The arguments must be prepared as a joint effort by all of the team members. However, it is recommended that each team member present approximately 1/3 of the arguments before the panel of judges so that each student has an opportunity to participate. The judges may interrupt at any time with questions. The team member who is before the judges must respond. For the purposes of this exercise, all of the facts set forth in the background of the affirmative action cases must be accepted as accurate and cannot be disputed. Arguments may be based on legal precedent, aspects of the Constitution (especially with regard to equal protection), or any other theories that may be relevant to the issues. Students should use the material that has been provided to them in this packet and do as much outside research as they want. Resource persons should be consulted for this phase of the hearing. These cases present complicated issues even for legal experts. Students are therefore advised to read the background and summary of the decisions several times to understand the issues. Students will also need to familiarize themselves with the equal protection standards of review that were addressed in Lesson 1.
Handout 7E: EQUAL PROTECTION: RACE
Arguments for Appealing Litigant Team
As a member of the appealing litigant team, students should prepare arguments in favor of the use of affirmative action programs to remedy discrimination. The following arguments have been provided to help students identify the important issues and prepare their presentation:
Achieving diversity in education is a compelling state interest justifying the use of an affirmative action program under the strict scrutiny test? Remedying the effects of past discrimination is a compelling state interest justifying the use of an affirmative action program under the strict scrutiny test?
Students may make any additional arguments they consider persuasive based on the material provided and on their outside research.
Arguments for Supporting Litigant Team
As a member of the supporting litigant team, students should prepare arguments opposing the use of affirmative action programs to remedy discrimination. The following arguments are provided to help students identify the important issues and prepare their presentation before the judges.
Achieving diversity in education is not a compelling state interest and does not justify the use of an affirmative action program. Remedying the effects of past discrimination is not a compelling state interest and does not justify the use of an affirmative action program.
Students may make any additional arguments opposing affirmative action that they consider relevant based on the material provided and the results of their outside research.
Instructions for the Panel of Judges
As a member of the panel of judges, students should prepare questions about affirmative action programs that challenge the arguments made by both the appealing litigant team and the supporting litigant team. Judges may interrupt at any time with a question that is relevant to the argument that is being made. The following issues are provided as a guide to help the judges prepare questions.
Is achieving diversity in education a compelling state interest justifying the use of an affirmative action program under the strict scrutiny test? Is remedying the effects of past discrimination a compelling state interest justifying the use of an affirmative action program under the strict scrutiny test?
Students should also prepare additional questions that they believe are relevant to the issues raised in this material and in outside research.
At the conclusion of the arguments, the panel of judges will meet in chambers (the corners of the room) and decide which team has presented the most persuasive arguments and given the best responses to the questions. This decision will be made by a majority vote of the judges. Lesson 7 APPENDIX A: EQUAL PROTECTION: RACE Alternative Approach 2 The three affirmative action cases may be addressed in three separate moot court proceedings, each concerned with a different case. The three separate moot court proceedings will be conducted simultaneously, however they can each take place in a different location. Divide the class into groups of nine students each. Three students in the group will serve as lawyers for the appealing litigant team advocating the use of affirmative action programs. Another three students will serve as lawyers for the supporting litigant team opposing the use of affirmative action programs. The remaining three students will serve as a panel of judges who will make a decision in the case. If there are more than twenty-seven students in the class, a case may be used more than once and an additional group created. Distribute Handout 7B Introduction to a Moot Court Hearing. Have students read and study the handout. Distribute Handout 7C Regents of the University of California v. Bakke to one of the groups. Distribute Handout 7C Adarand Constructors Inc., v. Pena to a second group. Distribute Handout 7C Hopwood v. Texas to a third group. Have students read and study the handouts carefully. Distribute Handout 7D. The appealing litigant team will read and study Handout 7D pg. 1. The supporting litigant team will read and study Handout 7D pg. 2. The panel of judges will read and study Handout 7D pg. 3. If possible, lawyers who are familiar with the affirmative action decisions should be asked to serve as resource persons. Students must consult with the other members of the team during preparation. The oral arguments are a joint effort. The preliminary sessions may take several class periods, and may also involve outside research and preparation. After this phase of the exercise has been completed, the moot court will begin. Lesson 7 APPENDIX A: EQUAL PROTECTION: RACE Alternative Approach 2 Instructions for the moot court The appealing and supporting litigant teams will each have five minutes to present their arguments and answer questions posed by the judges. Appealing litigant team members will present their arguments first, followed by supporting litigant team members. One or all of the team members may present oral arguments. The judges may interrupt and ask questions at any point during a student's argument. The five-minute time period may be extended at the discretion of the judges. Teams may reserve a part of their total argument time for rebuttal. Rebuttal is used to counter the opponent's arguments and not to raise new issues. The rebuttal portion may or may not be included in this exercise depending upon time constraints. After completion of the oral arguments, the judges will retire to their chambers (the corners of the room) for five minutes to discuss the arguments and reach a decision. The decision will be determined by a majority vote of the judges. The moot court hearing itself can be completed in one class period. After each group has completed the moot court hearing in accordance with the instructions in the handouts and as outlined above, a spokesperson will be selected to represent the group. The spokesperson for each group will summarize the facts, issues, and arguments of the case they heard and make a short presentation before the entire class. When the spokespeople have completed their presentations, students will compare and contrast the three cases before proceeding to the questions. Have students explain their answers to the questions provided in the original format of the lesson.
Lesson 7 APPENDIX A: EQUAL PROTECTION: RACE Alternative Approach 2 Introduction to a Moot Court Hearing A moot court is patterned after an appeals court or Supreme Court hearing. Unlike a trial, no witnesses are called and no testimony is given. Students, acting as attorneys, present oral arguments before a panel of student judges. The judges then make a decision based on the strength of the arguments. Team Instructions During the moot court exercise, the class will be divided into groups of nine students each. Each of the groups will be assigned one of the three affirmative action cases. A separate hearing will be conducted by each group, with several hearings occurring at once. Each group will be subdivided into three teams. Each team will be asked to serve as either appealing litigant's attorneys, supporting litigant's attorneys or the panel of judges. The appealing litigant team argues against the decision of the lower court and will make its presentation first. The supporting litigant team argues in favor of the decision of the lower court and will make its presentation following the appealing litigant team. The panel of judges will then consider all of the arguments that each team has made, including the responses to questions, and decide which team is most persuasive. Instructions for the Preparation of Arguments Each team will have five minutes to present its arguments. The arguments must be prepared as a joint effort by all of the team members. However, it is recommended that each team member present approximately 1/3 of the arguments before the panel of judges so that each student has an opportunity to participate. The judges may interrupt at any time with questions. The team member who is before the judges must respond. For the purposes of this exercise, all of the facts set forth in the background of the affirmative action cases must be accepted as accurate and cannot be disputed. Arguments may be based on legal precedent, aspects of the Constitution (especially with regard to equal protection), or any other theories that may be relevant to the issues. Students should use the material that has been provided to them in this packet and do as much outside research as they want. Resource persons should be consulted for this phase of the hearing. These cases present complicated issues even for legal experts. Students are therefore advised to read the background and summary of the decisions several times to understand the issues. Students will also need to familiarize themselves with the equal protection standards of review that were addressed in Lesson 1.
Lesson 7 APPENDIX A: EQUAL PROTECTION: RACE Alternative Approach 2 Regents of the University of California v. Bakke 438 U.S. 265 (1978)In the first and perhaps best known of these cases, a white male named Allan Bakke applied to the University of California at Davis Medical School in 1973 and 1974. Despite strong grades and test scores, Mr. Bakke was rejected both times. During the years in question, the Davis Medical School maintained two admissions programs. The regular admissions program, from which Bakke was rejected, included 84 students. The special admissions program designated for minorities included 16 students. Among the 84 students admitted under the regular program, Bakke's record was average. But among the 16 students admitted under the special program, Bakke's record was superior. Bakke brought a lawsuit claiming that because the special admissions program employed a "quota" which reserved 16 spots for minorities, he was denied admission to the medical school based on his race and this violated his right to equal protection under the Fourteenth Amendment.
Decision of the Court This case was decided by a very divided Supreme Court and produced no majority opinion. The Davis program was simply found to be a violation of Title VI of the Civil Rights Act of 1964 (see Lesson 6), and on those grounds alone, it was declared invalid. This did not mean however, that all affirmative action programs would suffer the same fate. The program had to first be reviewed under the equal protection standards of review we studied in Lesson 1. The Court concluded that the highest level of scrutiny should be applied to affirmative action cases. Justice Powell, writing for the Court, believed that any program which places people in a separate category based on race, even if to benefit the minority race, creates a suspect category and must be reviewed using the strict scrutiny test. Under this level of review, the reason for the affirmative action program must be a compelling state interest and the program itself must be the only way to attain that interest. Using this test, most affirmative action plans would be declared invalid. Justice Powell further argued that the only compelling state interest for such a program is to achieve diversity in education. By contrast, a separate dissenting opinion in part, held that a lower level of scrutiny should be applied to affirmative action. The lowest level, the reasonableness test (see Lesson 1), was considered too loose a standard to apply here where race was a crucial factor. An intermediate level of scrutiny appeared to be the solution. Since affirmative action only burdens the white majority, and the white majority does not need the same kind of special protection that racial minorities do, there is no need to apply the highest level of scrutiny. In these instances of reverse discrimination, where a government program can be described as "benign" with regard to racial minorities, a lower level or "intermediate" level of scrutiny is proper. Under this test, the reason for the program need only be "sufficiently important" rather than compelling, and the program itself need only be "substantially related" rather than the only way to attain that interest. Using this test, a greater number of affirmative action programs will be held constitutional. Although this is not the law, it is an alternative approach and a valid argument for the future of affirmative action. Lesson 7 APPENDIX A: EQUAL PROTECTION: RACE Alternative Approach 2 Arguments for Appealing Litigant Team
Regents of the University of California v. Bakke As a member of the appealing litigant team, students should prepare arguments in favor of the medical school's use of the affirmative action program to remedy discrimination. The following arguments have been provided to help students identify the important issues and prepare their presentation:
Students may make any additional arguments they consider persuasive based on the material provided and their outside research.
Lesson 7 APPENDIX A: EQUAL PROTECTION: RACE Alternative Approach 2 Arguments for Supporting Litigant Team
Regents of the University of California v. Bakke As a member of the supporting litigant team, students should prepare arguments opposing the use of the Davis Medical School's affirmative action program to remedy discrimination. The following arguments have been provided to help students identify the important issues and prepare their presentation:
Students may make any additional arguments they consider persuasive based on the material provided and their outside research.
Lesson 7 APPENDIX A: EQUAL PROTECTION: RACE Alternative Approach 2 Instructions for the Panel of Judges
Regents of the University of California v. Bakke As a member of the panel of judges, students should prepare questions about the affirmative action program used by the Davis Medical School that challenge the arguments made by both the appealing litigant team and the supporting litigant team. Judges may interrupt at any time with a question that is relevant to the argument that is being made. The following issues are provided as a guide to help the judges prepare questions:
Students should also prepare additional questions that they believe are relevant to the issues raised in this material and in outside research.
At the conclusion of the arguments, the panel of judges will meet in chambers (the corners of the room) and decide which team has presented the most persuasive arguments and given the best responses to the questions. This decision will be made by a majority vote of the judges.
Lesson 7 APPENDIX A: EQUAL PROTECTION: RACE Alternative Approach 2
Adarand Constructors, Inc., v. Pena , 115 S.Ct. 2097 (1995)Several years later, another type of affirmative action program was used to select small businesses that would receive contracts to perform government jobs. This time, the federal government enacted a law requiring at least 10% of funds for highway projects, to be "set aside" for small businesses owned and operated by "socially and economically disadvantaged" persons. The law presumes that such persons are women and minorities (although other individuals may qualify). Thus, a company in charge of a highway project, known as a general contractor, could receive a cash bonus from the federal government by "setting aside" sane of the work for small businesses owned and operated by women and minorities. Adarand Constructors, Inc. is a small business specializing in highway construction which is owned by a white male. Although the company was willing to perform work as a subcontractor on a highway project at the lowest cost, a minority owned small business was selected instead. In this way, the company in charge of the project qualified for a cash bonus from the federal government. Adarand brought a lawsuit claiming that the use of race as the sole criterion for the selection of small businesses to perform government jobs, violated his right to equal protection under the Fifth and Fourteenth Amendments.
Decision of the Court The Court held in a majority opinion, that strict scrutiny was the proper standard to use in reviewing affirmative action programs in federal government jobs. Preferential treatment for minorities posed a danger of creating an unfair racial category, even if designed to benefit a previously disadvantaged group. Moreover, affirmative action could stamp minorities with a badge of inferiority in addition to burdening the white majority. Thus, the federal government could not give special preferences to minority businesses when awarding contracts for jobs unless the program passed strict scrutiny. Under strict scrutiny, the reason for the program must be a compelling governmental interest and in the language of this Court, the program must be "narrowly tailored" in its method of attaining that interest. To prove that a remedy is narrowly tailored, the program must be limited to a specific time period and be imposed as a last resort, after all other solutions have been exhausted. In this instance, the Supreme Court sent the case back to the lower courts to determine if the "set asides" used here could pass such a high level of scrutiny. The Supreme Court did take this as an opportunity to establish strict scrutiny as the standard of review for all affirmative action programs regardless of whether they originate at the federal, state or local level.
Lesson 7 APPENDIX A: EQUAL PROTECTION: RACE Alternative Approach 2 Arguments for Appealing Litigant Team
Adarand Constructors, Inc., v. Pena As a member of the appealing litigant team, students should prepare arguments in favor of the use of affirmative action programs by the federal government to remedy discrimination. The following arguments have been provided to help students identify the important issues and prepare their presentation:
Students may make any additional arguments they consider persuasive based on the material provided and their outside research.
Lesson 7 APPENDIX A: EQUAL PROTECTION: RACE Alternative Approach 2 Arguments for Supporting Litigant Team
Adarand Constructors, Inc., v. Pena As a member of the supporting litigant team, students should prepare arguments opposing the use of affirmative action programs by the federal government to remedy discrimination. The following arguments have been provided to help students identify the important issues and prepare their presentation:
Students may make any additional arguments they consider persuasive based on the material provided and their outside research.
Lesson 7 APPENDIX A: EQUAL PROTECTION: RACE Alternative Approach 2 Instructions for the Panel of Judges
Adarand Constructors, Inc., v. Pena As a member of the panel of judges, students should prepare questions about affirmative action programs that challenge the arguments made by both the appealing litigant team and the supporting litigant team. Judges may interrupt at any time with a question that is relevant to the argument that is being made. The following issues are prepared as a guide to help the judges prepare questions:
Students should also prepare additional questions that they believe are relevant to the issues raised in this material and in outside research. At the conclusion of the arguments, the panel of judges will meet in chambers (the corners of the room) and decide which team has presented the most persuasive arguments and given the best responses to the questions. This decision will be made by a majority vote of the judges.
Lesson 7 APPENDIX A: EQUAL PROTECTION: RACE Alternative Approach 2
Hopwood v. Texas 78 F. 3d 932 (5th Cir. 1996)In the third and most recent decision, the University of Texas Law School maintained a policy of coding applications by race and separating minority applications for review by a minority admissions committee. The school wanted to achieve an entering class that was 5% African-American and 10% Mexican-American. Admissions decisions were based on an index of grades and test scores. Students selected from the regular applicant pool were required to have a higher index than students selected from, the minority applicant pool. Four white students who were rejected from the regular applicant pool in 1992, had a higher index than most of the students accepted from the minority applicant pool for that year. They brought a lawsuit arguing that the school's policy of establishing two different index scores based on race, violated their right to equal protection under the Fourteenth Amendment.
Decision of the Court In this case, the Supreme Court denied certiorari (see the discussion of certiorari in Lesson 1-A), and never reviewed the University of Texas admissions policy. Thus, while Hopwood is good law in the Fifth Circuit, it does not have the same force and effect of either Bakke or Adarand. Although not the law of the land, the decision does suggest a trend regarding the use of race in admissions policies in higher education. Like Bakke and Adarand, the court reached the conclusion that the strict scrutiny test must be applied to affirmative action programs that use race based solutions as a remedy. The Fifth Circuit then departed from Bakke by rejecting Justice Powell's argument that achieving diversity in education is a compelling state interest. Under Hopwood, the use of race to achieve a diverse or ethnically mixed student body is not an interest compelling enough to justify the admissions policy adopted by the law school. Only the school's interest in remedying the present effects of past discrimination would be sufficient to pass strict scrutiny. Here, according to the Fifth Circuit, the law school was merely trying to remedy the present effects of past discrimination by the Texas Public School System in failing to prepare minorities for the competitive process of gaining admission to professional school. Since the law school itself had not engaged in the discriminatory behavior, they could not demonstrate a compelling state interest and the admissions policy was struck down. It is difficult to predict how much of Hopwood the Supreme Court and other jurisdictions will be inclined to follow.
Lesson 7 APPENDIX A: EQUAL PROTECTION: RACE Alternative Approach 2 Arguments for Appealing Litigant Team
Hopwood v. Texas As a member of the appealing litigant team, students should prepare arguments in favor of the use of the Texas Law School's affirmative action program to remedy discrimination. The following arguments have been provided to help students identify the important issues and prepare their presentation:
Students may make any additional arguments they consider persuasive based on the material provided and their outside research.
Lesson 7 APPENDIX A: EQUAL PROTECTION: RACE Alternative Approach 2 Arguments for Supporting Litigant Team
Hopwood v. Texas As a member of the supporting litigant team, students should prepare arguments opposing the use of the Texas Law School's affirmative action program to remedy discrimination. The following arguments have been provided to help students identify the important issues and prepare their presentation
Students may make any additional arguments they consider persuasive based on the material provided and their outside research.
Lesson 7 APPENDIX A: EQUAL PROTECTION: RACE Alternative Approach 2 Instructions for the Panel of Judges
Hopwood v. Texas As a member of the panel of judges, students should prepare questions about affirmative action programs that challenge the arguments made by both the appealing litigant team and the supporting litigant team. Judges may interrupt at any time with a question that is relevant to the argument that is being made. The following issues are prepared as a guide to help the judges prepare questions:
Students should also prepare additional questions that they believe are relevant to the issues raised in this material and in outside research.
At the conclusion of the arguments, the panel of judges will meet in chambers (the corners of the room) and decide which team has presented the most persuasive arguments and given the best responses to the questions. This decision will be made by a majority vote of the judges. Lesson 7 APPENDIX B: EQUAL PROTECTION: RACE Alternative Approach 3 If students do not have a good command of equal protection standards of review due to the difficulty of the material, eliminate much of Lesson l-B and conduct the moot court hearing without reference to strict scrutiny analysis. Divide the class into groups of nine students each. Three students in the group will serve as lawyers for the appealing litigant team advocating the use of affirmative action programs. Another three students will serve as lawyers for the supporting litigant team opposing the use of affirmative action cases. The remaining three students will serve as a panel of judges who will make a decision in the case. Distribute Handout 7B Background of the Affirmative Action Cases and have students read and study the handout carefully. Do not distribute the Findings of the Court. Distribute Handout 7C Introduction to a Moot Court Hearing. Have students read and study the handout. Next distribute Handout 7D. The appealing litigant team will read and study Handout 7D pg. 1. The supporting litigant team will read and study Handout 7D pg. 2. The panel of judges will read and study Handout 7D pg.3. If possible, lawyers who are familiar with the affirmative action decisions should be asked to serve as resource persons. Before beginning the moot court, all students assigned to a panel of judges will meet and discuss the three affirmative action cases based on the material they now have. The same will occur for all students who are assigned to appealing litigant teams and supporting litigant teams. After completion of these meetings, the students will reconvene in their assigned groups, complete their research and prepare their arguments or questions. Students must consult with the other members of the team during preparation. The oral arguments are a joint effort. Once the preliminary sessions have been completed, the moot court will begin. The moot court will take several class sessions and may also involve outside research and preparation. In this third approach, all three cases will be heard by each group, but with an abbreviated set of arguments. Lesson 7 APPENDIX B: EQUAL PROTECTION: RACE Alternative Approach 3 Instructions for the moot court The appealing and supporting litigant teams will each have five minutes to present their arguments and answer questions posed by the judges. Appealing litigant team members will present their arguments first, followed by supporting litigant team members. One or all of the team members may present oral arguments. The judges may interrupt and ask questions at any point during a student's argument. The five-minute time period may be extended at the discretion of the judges. Teams may reserve a part of their total argument time for rebuttal. Rebuttal is used to counter the opponent's arguments and not to raise new issues. The rebuttal portion may or may not be included in this exercise depending upon time constraints. After completion of oral arguments, the judges will retire to their chambers (the corners of the room) for five minutes to discuss the issues and reach a decision. The decision will be determined by a majority vote of the judges. At the conclusion of the hearing conduct a debriefing session by asking only the questions that do not involve strict scrutiny analysis. A general knowledge of affirmative action and its relationship to the Equal Protection Clause can be acquired by students without engaging in as complex an analysis as the courts did. After students have completed the moot court hearing, have them explain their answers to the following questions: How would you explain the facts in each case? Based on the facts of the three cases, what are the goals of affirmative action? Do you think the affirmative action programs described in the three cases will accomplish these goals? Why? Why not? What was the decision of the panel of judges? Explain. Why did the panel of judges decide as they did? Do you agree with the decision of the panel of judges? Why? Why not? How realistic do you think the moot court was? Explain. How well do you think students did during the role-play? How did you feel while playing your role? Explain. Did you agree with the arguments you made during the moot court? Explain. Were you able to play your role even when you did not agree with the arguments? Explain. Would you change anything about the moot court hearing? Explain. Lesson 7 APPENDIX B: EQUAL PROTECTION: RACE
Alternative Approach 3
Do you think affirmative action violates the Constitution? Explain. Do you think affirmative action violates any of the amendments? If so, which amendments are violated? Do you think affirmative action violates the Civil Rights Act? If so, what parts? Why? What do you think "reverse discrimination" means? Explain. Do you think affirmative action is a form of reverse discrimination? Why? Why not? When a program disadvantages the white majority, is the white majority a suspect category? Why? Why not? Should we compensate minorities for the effects of past instances of discrimination? Why? Why not? Is it fair to use affirmative action as a remedy for the effects of past instances of discrimination? Why? Why not? Does affirmative action stamp minorities with a badge of inferiority? Explain. Do you think affirmative action violates the Equal Protection Clause? Why? Why not? As a result of participation in the moot court hearing, do you favor the use of affirmative action programs? In both employment and education? In only employment? In only education? What other remedies do you think should be used to combat discrimination?
Lesson 7 APPENDIX B: EQUAL PROTECTION: RACE Alternative Approach 3 Background of the Affirmative Action Cases Regents of the University of California v. Bakke 438 U.S. 265 (1978)In the first and perhaps best known of these cases, a white male named Allan Bakke applied to the University of California at Davis Medical School in 1973 and 1974. Despite strong grades and test scores, Mr. Bakke was rejected both times. During the years in question, the Davis Medical School maintained two admissions programs. The regular admissions program, from which Bakke was rejected, included 84 students. The special admissions program designated for minorities included 16 students. Among the 84 students admitted under the regular program, Bakke's record was average. But among the 16 students admitted under the special program, Bakke's record was superior. Bakke brought a lawsuit claiming that because the special admissions program employed a "quota" which reserved 16 spots for minorities, he was denied admission to the medical school based on his race and this violated his right to equal protection under the Fourteenth Amendment.
Adarand Constructors, Inc., v. Pena , 115 S. Ct. 2097 (1995)Several years later, another type of affirmative action program was used to select small businesses that would receive contracts to perform government jobs. This time, the federal government enacted a law requiring at least 10% of funds for highway projects, to be "set aside" for small businesses owned and operated by "socially and economically disadvantaged" persons. The law presumes that such persons are women and minorities (although other individuals may qualify). Thus, a company in charge of a highway project, known as a general contractor could receive a cash bonus from the federal government by "setting aside" some of the work for small businesses owned and operated by women and minorities. Adarand Constructors, Inc. is a small business specializing in highway construction that is owned by a white male. Although the company was willing to perform work as a subcontractor on a highway project at the lowest cost, a minority-owned small business was selected instead. In this way, the company in charge of the project qualified for a cash bonus from the federal government. Adarand brought a lawsuit claiming that the use of race as the sole criterion for the selection of small businesses to perform government jobs, violated his right to equal protection under the Fifth and Fourteenth Amendments.
Lesson 7 APPENDIX B: EQUAL PROTECTION: RACE
Alternative Approach 3
Hopwood v. Texas 78 F. 3d 932 (5th Cir. 1996)In the third and most recent decision, the University of Texas Law School maintained a policy of coding applications by race and separating minority applications for review by a minority admissions committee. The school wanted to achieve an entering class that was 5% African-American and 10% Mexican-American. Admissions decisions were based on an index of grades and test scores. Students selected from the regular applicant pool were required to have a higher index than students selected from the minority applicant pool. Four white students who were rejected from the regular applicant pool in 1992, had a higher index than most of the students accepted from the minority applicant pool for that year. They brought a lawsuit arguing that the school's policy of establishing two different index scores based on race, violated their right to equal protection under the Fourteenth Amendment. Lesson 7 APPENDIX B: EQUAL PROTECTION: RACE
Alternative Approach 3 Introduction to a Moot Court Hearing
A moot court is patterned after an appeals court or Supreme Court hearing. Unlike a trial, no witnesses are called and no testimony is given. Students, acting as attorneys, present oral arguments before a panel of student judges. The judges then make a decision based on the strength of the arguments.
Team Instructions During the moot court exercise, the class will be divided into groups of nine students each. A separate hearing will be conducted by each group, with several hearings occurring at once. Each group will be subdivided into three teams. Each team will be asked to serve as either appealing litigant's attorneys, supporting litigant's attorneys or the panel of judges. The appealing litigant team argues in favor of affirmative action and will make its presentation first. The supporting litigant team argues against affirmative action and will make its presentation following the appealing litigant team. The panel of judges will then consider all of the arguments that each team has made, including the responses to questions, and decide which team is most persuasive.
Instructions for the Preparation of Arguments Each team will have five minutes to present its arguments. The arguments must be prepared as a joint effort by all of the team members. However, it is recommended that each team member present approximately 1/3 of the arguments before the panel of judges so that each student has an opportunity to participate. The judges may interrupt at any time with questions. The team member who is before the judges must respond. For the purposes of this exercise, all of the facts set forth in the background of the affirmative action cases must be accepted as accurate and cannot be disputed. Arguments may be based on legal precedent, aspects of the Constitution (especially with regard to equal protection), or any other theories that may be relevant to the issues. Students should use the material that has been provided to them in this packet and do as much outside research as they want. Resource persons should be consulted for this phase of the hearing.
Lesson 7 APPENDIX B: EQUAL PROTECTION: RACE
Alternative Approach 3 Arguments for Appealing Litigant Team
As a member of the appealing litigant team, students should prepare arguments in favor of the use of affirmative action programs to remedy discrimination. The following arguments have been provided to help students identify the important issues and prepare their presentation:
Students may make any additional arguments they consider persuasive based on the material provided and their outside research.
Lesson 7 APPENDIX B: EQUAL PROTECTION: RACE
Alternative Approach 3 Arguments for Supporting Litigant's Team
As a member of the supporting litigant team, students should prepare arguments opposing the use of affirmative action programs to remedy discrimination. The following arguments have been provided to help students identify the important issues and prepare their presentation:
Students may make any additional arguments they consider persuasive based on the material provided and their outside research.
Lesson 7 APPENDIX B: EQUAL PROTECTION: RACE
Alternative Approach 3 Instructions for the Panel of Judges
As a member of the panel of judges, students should prepare questions about affirmative action programs that challenge the arguments made by both the appealing litigant team and the supporting litigant team. Judges may interrupt at any time with a question that is relevant to the argument that is being made. The following issues are prepared as a guide to help the judges prepare questions:
Students should also prepare additional questions that they believe are relevant to the issues raised in this material and in outside research.
At the conclusion of the arguments, the panel of judges will meet in chambers (the corners of the room) and decide which team has presented the most persuasive arguments and given the best responses to the questions. This decision will be made by a majority vote of the judges.
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