적극적 평등실현조치와 ‘역차별’의 정치
Affirmative Action and the Politics of “Reverse Discrimination”
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The purpose of this paper is to trace the discursive changes of affirmative action with special regards or "with special respect" to the landmark cases relating to post-secondary education. Affirmative action was initially introduced as procedural fairness by President John F. Kennedy, to produce a society with equal opportunity for all qualified persons but was changed into a compensatory policy, especially for the Afro-Americans during the Lyndon B. Johnson administration. Affirmative action quotas were mainly regarded, at least by the policy makers, as a “reward” for the racial riots of 1964-65. As a result, color-blind and procedural public policies were transformed into color-conscious and substantive social programs guaranteeing equal results rather than equal opportunity. In Regents of the University of California vs. Bakke (1978), however, the Supreme Court prohibited the racial quota system for its violation of equal protection under the fourteenth amendment. In the fractured decision, nevertheless, Justice Lewis F. Powell, Jr., declared that a state may consider race as a “plus” in post-secondary admissions. Under strict scrutiny review he held the UC Davis medical school's use of race to attain a racially diverse student body is a constitutionally permissible goal for it would advance the ideals of academic freedom but the Davis admissions program was not narrowly tailored for a compelling state interest. As a result of the fractured opinion, a split occurred among lower courts in interpreting Justice Powell's opinion. Justice Powell's opinion was clearly affirmed by Grutter v. Bollinger (2003) and Gratz v. Bollinger (2003). The Court defended the university's pursuit of racial diversity for its positive societal outcomes. In fact, the Court's use of cost/benefits analysis was not closely related to remedying past discrimination and affirmative color-conscious programs were justified as a temporary policy to promote racial equality, although a long-term goal of affirmative action is color-blind. The dilemmas and ironies of affirmative action will persist as long as the tension between color-blind goals and color-conscious means are not resolved and the discursive anxiety between individual rights and group rights are not be resolved.
Abstract
The purpose of this paper is to trace the discursive changes of affirmative action with special regards or "with special respect" to the landmark cases relating to post-secondary education. Affirmative action was initially introduced as procedural fairness by President John F. Kennedy, to produce a society with equal opportunity for all qualified persons but was changed into a compensatory policy, especially for the Afro-Americans during the Lyndon B. Johnson administration. Affirmative action quotas were mainly regarded, at least by the policy makers, as a “reward” for the racial riots of 1964-65. As a result, color-blind and procedural public policies were transformed into color-conscious and substantive social programs guaranteeing equal results rather than equal opportunity. In Regents of the University of California vs. Bakke (1978), however, the Supreme Court prohibited the racial quota system for its violation of equal protection under the fourteenth amendment. In the fractured decision, nevertheless, Justice Lewis F. Powell, Jr., declared that a state may consider race as a “plus” in post-secondary admissions. Under strict scrutiny review he held the UC Davis medical school's use of race to attain a racially diverse student body is a constitutionally permissible goal for it would advance the ideals of academic freedom but the Davis admissions program was not narrowly tailored for a compelling state interest. As a result of the fractured opinion, a split occurred among lower courts in interpreting Justice Powell's opinion. Justice Powell's opinion was clearly affirmed by Grutter v. Bollinger (2003) and Gratz v. Bollinger (2003). The Court defended the university's pursuit of racial diversity for its positive societal outcomes. In fact, the Court's use of cost/benefits analysis was not closely related to remedying past discrimination and affirmative color-conscious programs were justified as a temporary policy to promote racial equality, although a long-term goal of affirmative action is color-blind. The dilemmas and ironies of affirmative action will persist as long as the tension between color-blind goals and color-conscious means are not resolved and the discursive anxiety between individual rights and group rights are not be resolved.
참고문헌 (29)
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