POSC 130g 1st Edition Lecture 16 Current LectureAffirmative ActionIdea of Equality: treatment as an equal or equality under the law?Professor Robert Dworkin: distinction between equal treatment and treatment as an equal which allows for differential treatmentStrict scrutiny test: some cases, the Supreme Court is saying people must be treated exactly the same- identical treatment. But, in some cases, equality allows for treating people differently in order to treat them equally. There might be different criteria based on different circumstances in life. Affirmative Action: quotas, Bakke case- court held that the use of quotas was unconstitutional, however the Supreme Court said it was permissible to take race into account as a factor. Arguments for and against affirmative action: be a minority but come from a different background/upper middle class; affirmative action is a form of discrimination. In terms of the law, in the Bakke case, the court accepted the justification of the university having a difference student body. Justice Powells emphasis on having a diverse student body was the only rational that had been emphasized; the other justices didn’t express support. It isn’t entirely clear if the diversity rational was a sufficient basis for having affirmative action.Problems: Institutions that have affirmative action must have a history of discrimination. In addition the institutions that discriminate are less likely to have affirmative action. Can there be minority specific scholarships? Podersky v Kirwan: case involving the University of Maryland; it was a policy that permitted only African Americans to receive a scholarship to go to that school. A Hispanic student sued, challenging the validity of the scholarship. This led to an inter-ethnic conflict. The student had the proper scores and SATs to qualify for the scholarship but he wasn’t African American. The University had a history of discrimination against blacks- it met the criteria of having affirmative action. When it went to the federal court of appeals, the court thought there was no justification for having a separate scholarship on the basis of the university’s history against African Americans and besides the fact the campus was thought to be hostile towards African Americans. The court thought there was a more race neutral alternative to be used. They shouldn’t have race specific scholarships. This debate existed in the 1990s; some universities adopted diversity scholarships. What is the legal standard that should be used to look atminority scholarships? In this case, the court said strict scrutiny should be used. In the government, there were lawsuits against universities who had science programs for minorities. A white student sued who had been excluded from the science program. There was a man named Michael Williams, who decided that there could no longer be federal government that was given to African American scholarships. President Bush Senior rescinded the policy and said he would take it under consideration. President Clinton authorized the use of race specific scholarships. There was a criticism implicit in a scholarship program that was established at Roger Williams University that started a white only scholarship- had to write an essay about whythey are proud of their white heritage. US Supreme Court has considered policies where money is set aside for minority businesses. The Supreme Court used strict scrutiny to strike down practices of allowing this to go on. Another form of affirmative action is redistricting or voting districts through reapportionment toempower African Americans. In these cases, known as gerrymandering, there has been a question as to whether that is consistent. The last public policy was the use of reparations- there was a campaign to try to get reparations for slavery. COBRA was an effort launched by Congressman Conyors- fought to get Martin LutherKing Jr day a holiday. This had not succeeded yet but it is impossible to occur in some point. To use reparations to address racial injustice, it is hard to calculate the amount received. Discrimination occurs because of societal attitudes. If there are deeply rooted racial attitudes, are we expecting too much from the law?Sheryl Hoffwood: Court of Appeal in Texas struck down Affirmative Action at the University of Texas. The University of Texas is being challenged again and going to the Supreme CourtShould the courts use strict scrutiny? In the University of Michigan, the courts allowed affirmative action but didn’t allow the waiving to be used. The University of Michigan upheld it for Law School but not undergrad because of the waiting. People thought they were going to strike down affirmative action. It was a 5-4 vote in favor of affirmative law suit in the Law School but 6-3 in the affirmative action for the undergrad. In Graps v Bollenger, race could be a factor but not the deciding factor. The blacks, Latino, or nativeAmerican got twenty points. After the case was decided, the University required an essay on thebenefit of diversity. The other case Gruder v Bollenger, Justice O’Connor wrote the opinion and there was no weight given to race- this didn’t violate equal protection. This didn’t affect California because California had already removed the idea of race and affirmative action. What constitutes merit? Dworkin argues that various characteristics may matter. Affirmative action isn’t restricted to race, it could be directed towards gender.Gender and LawWhat customs are the most sexist? If women made the world, what social institutions would be different?Should strict scrutiny be used in gender discrimination cases?Do sexual harassment lawsuits empower women?Misogynist customs1. Sex selection- abortions, trying to get sons, most of the abortions are girls2. Dowry death- women’s family doesn’t have enough money in India and is murdered3. FGM- females must have surgery in order to marry; the idea that females must have their sexuality controlled4. Mass rapes in wartime- most extreme forms, in Rwanda, identified rape as a war crime and treated as a crime against humanity. This has always been a crime but has only beenacknowledged recently under international law. Gender Equality in US Law and International Lawfirst women’s rights conference at Seneca Falls, New York- near the home of Elizabeth Stanton; 250 women and 40 men came States began to pass laws to let women own property; married women