Reaffirming Merit in Affirmative Action

Journal of Legal Education

Volumn 47, Issue 4, 1997, Pages 514-522

  Woo, Margaret Y K ^a  

^a NORTHEASTERN UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 0031352050     PISSN: 00222208     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (21)

1. Nicholas Lemann, Taking Affirmative Action Apart, N.Y. Times, June 11, 1995, § 6 (Magazine), at 36, 40.
2. Proposition 209 provides: "The state shall not discriminate against or grant preferential treatment to any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting." Cal. Const. art. 1, § 31 (a).
3. Lemann, supra note 1, at 54.
4. 78 F.3d 932 (5th Cir.), cert. denied, 116 S.Ct. 2582 (1996). Lawsuits challenging the diversity goals of admissions policies are occurring with increasing frequency. The latest defendant of such lawsuit is the University of Michigan. See Ethan Bronner, Group Suing U. of Michigan over Diversity, N.Y. Times, Oct. 14, 1997, at A24.
5. 38 F.3d 147 (4th Cir. 1994), cert. denied, 514 U.S. 1128 (1995).
6. 91 F.3d 1547 (3d Cir. 1996), cert. dismissed, 66 U.S.L.W. 3393 (U.S. Dec. 2, 1997) (No. 96-679).
7. Paul Brest & Miranda Oshige, Affirmative Action for Whom? 47 Stan. L. Rev. 855, 856 (1995).
8. Susan Sturm & Lani Guinier, The Future of Affirmative Action: Reclaiming the Innovative Ideal, 84 Cal. L. Rev. 953, 968 (1996).
9. Randall L. Kennedy, Racial Critiques of Legal Academia, 102 Harv. L. Rev. 1745, 1806 (1989); see also John E. Morrison, Colorblindness, Individuality, and Merit: An Analysis of the Rhetoric Against Affirmative Action, 79 Iowa L. Rev. 313, 330 (1994).
10. Randall L. Kennedy, Racial Critiques of Legal Academia, 102 Harv. L. Rev. 1745, 1806 (1989); see also John E. Morrison, Colorblindness, Individuality, and Merit: An Analysis of the Rhetoric Against Affirmative Action, 79 Iowa L. Rev. 313, 330 (1994).
11. I take the phrase from Lemann, supra note 1, at 43.
12. Savage Inequalities: Children in America's Schools 54, 236 tbl. I (New York, 1991).
13. One can argue that there is no such thing as "merit" in the abstract. Merit must be understood in context of the purposes an institution may define and pursue. Ronald Dworkin, A Matter of Principle 299-300 (Cambridge, Mass., 1985). In other words, what counts as merit in an applicant depends on what qualities the particular institution deems relevant to its own character and its social purposes. For a school like mine with a public interest mission, a student demonstrating special background in public interest work could have an added measure of merit. Other schools have other emphases.
14. This is consistent with the consideration schools already give to personal tragedies faced by individual applicants. My position is simply that societal obstacles (such as race discrimination) can and should also be taken into account, and that affirmative action should appropriately address recognized patterns of disadvantage based simply on membership in a particular group.
15. Not Only for Myself: Identity, Politics, and Law, 75 Or. L. Rev. 647, 649 (1996).
16. For a good analysis of the complex position of Asian Pacific Americans in the affirmative action debate, see Gabriel Chin et al., Beyond Self-interest: Asian Pacific Americans Toward a Community of Justice, A Policy Analysis of Affirmative Action (on file with author).
17. Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265 (1978).
18. Preserving Affirmative Action Programs in the Late 90's (June 1996).
19. 861 F. Supp. 551, 579 (W.D. Tex. 1994). Indeed, the Hopwood plaintiffs have not complained about the new affirmative action program instituted after this decision. The new affirmative action program does not use separate committees or differential numerical admissions requirements, and uses race or ethnicity only as one factor in making admissions decisions.
20. Quoted in Derrick Bell, Guarding Diversity Programs from Political and Judicial Attack, Chron. Higher Educ., Apr. 4, 1997, at B4.
21. Law Faculty in the 21st Century: Responding to Megatrends and New Realities, The President's Message, AALS Newsl., Nov. 1996.