AFFIRMATIVE ACTION AND THE LAW
                              
I. What is Affirmative Action? Core meaning--taking steps beyond merely avoiding 
forms of discrimination or exclusion by trying to notice them as they arise.

A. "Diligent search" procedures to ensure consideration of a pool of candidates 
from previously excluded or discriminated against groups and to assure equal 
consideration--e.g., advertising, recruiting of minority applicants, interview 
strategies, etc.
B. Considering, or giving different weight, to different forms of evidence of 
suitability, not because of any change in standards, but because of a 
realization that previous beliefs about the reliability of evidence were 
mistaken.     
C. Setting goals and having to justify failure to meet them as evidence of good 
faith that a duty of equal consideration is being met.
D. Treating race as one feature to be balanced against others when selecting from 
among a subset of applicants, all of whom are judged to be qualified by race-
neutral standards (for example, in trying to achieve a diverse class or work 
force).
E. Setting aside certain positions for qualified minority members.

II. The major debate over affirmative action concerns D and E, although some 
opponents also object to C on the grounds that it in practice it tends to become D-
E.

III. Our focus:

A. Higher education
B. Affirmative action on grounds of race, specifically, being black.  

IV. Distinction between desirability- or suitability-characteristics vs. evidence of 
these.  Example:  test scores as evidence of ability to thrive as a college student.

     	A-C involve no change in desirability-characteristics.
    	D-E do involve such a change.

V. Distinction between merit as desirability or suitability vs. merit as desert.  College 
admission would seem not to be a prize or reward that one can deserve or have 
earned by one’s prior activity.  Rather a university is charged with selecting the 
best (most desirable) student body for its overall purposes as a certain kind of 
educational institution.

VI. Distinction between relative vs. absolute qualification.  One candidate is more 
qualified than another if that person is a more desirable or suitable candidate.  A 
candidate is absolutely qualified if admitting that person could be justified in light 
of the overall standards and purposes of the institution, holding fixed the question 
of whether there are better candidate. 

All the forms of affirmative action we will be considering hold that a person 
should not be admitted unless he or she is qualified in this absolute sense.

VII. The Constitutional Issue focuses on the “equal protection clause” of the 
Fourteenth Amendment of the Constitution.  This requires that no state deny any 
citizen “equal protection of the laws.”  

A. Historically, race has been held to be a “suspect” classification requiring 
“strict scrutiny.”
B. Accordingly, any law or state practice that treats people differently on the 
grounds of race, must:
i. Serve by a “compelling state interest,”
ii. Be necessary to serve that purpose
a. not “over-inclusive”
b. not “under-inclusive”

VIII. In Bakke, the Court held that the University of California at Davis’s admissions 
processes violated these tests.  

A. In effect, Davis’s process was a version of IE.  Although it didn’t formally set 
aside a certain number of positions for qualified blacks, but there was a “two 
track” admission process, where black applicants were separately evaluated 
and admitted separately.  “The special committee then presented its top 
choices to the general admissions committee.  The latter did not rate or 
compare the special candidates against the general applicants, but could reject 
recommended special candidates for failure to meet course requirements or 
other specific deficiencies.  The special continued to recommend special 
applicants until a number prescribed by faculty vote were admitted.”
B. Nonetheless, Justice Powell, who announced the judgment of the Court, wrote 
that “the attainment of a diverse student body” is a compelling state interest, 
and that it would be constitutionally permissible for a state institution to take 
race as one factor among others, as a plus, in its admissions policy.  
C. In other words, Powell held that some version of ID passes Constitutional 
muster.

IX. Hopwood v. Texas is a circuit court decision that runs against Powell’s findings in 
Bakke.  It is binding only in the 5th Circuit, and has yet to be tested in the Supreme 
Court.  

A. Hopwood holds that achieving a diverse student body is not a “compelling 
state interest,” and, consequently, using racial classifications to serve this 
interest is inconsistent with the “equal protection clause” of the Fourteenth 
Amendment.
B. Powell’s “diversity rationale is reversibly flawed,” both on the merits (as in 
A) and because it was not agreed to by enough other justices.

X. The issue before us, is not the narrow Constitutional issue, but the following 
moral questions:

A. Should our laws permit racial affirmative action (ID?) (IE?)
B. Should our laws require racial affirmative action (ID?) (IE?)

XI. Three frameworks for approaching this issue.

A. Natural Rights Theory.
B. Utilitarianism
C. Contractualism