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As the title of the essay suggests, my chosen essay is the majority opinion delivered by Justice Sandra O’Connor to decide whether the use of race was a factor in the student admissions by the University of Michigan Law School (UMSL) is unlawful or not. The complainant was Barbara Grutter, a white female, who alleged that the University of Michigan Law School discriminated against her. On the other hand, UMSL was represented by Lee Bollinger, Dean of UMSL. Since this essay is delivered as a speech, O’Connor’s style is direct, filled with facts, and succinct enough to describe why they came up with the decision that what UMSL did was not discrimination and she even lauded the school’s goal of “assembling a class that is both exceptionally academically qualified and broadly diverse” (O’Connor, p.133).
Compared to contemporary writing, O’Connor’s style does not even reflect the sophistication and sassiness of feature articles found in girly magazines. Reading through O’Connor’s essay, it easily recounted the details of events that transpired in the case filed by Grutter to the law school that denied her admission. No flowery words or immense use of adjectives can be seen. This kind of style gives much credence to the essay because it gives us the impression that the writer is taking a neutral stance in handling the issue. If Sandra O’Connor used the flashy style of writing, there is a great tendency that she may be accused of taking sides because she is injecting her own opinion into her essay. We should remember that she is delivering the majority decision of the court. This is why, this speech of O’Connor despite its lackluster style, gained respect because of its impartiality in its language. Obviously, it was not influenced by the own bias of the person herself, but it upheld a majority decision that supported a law school admissions policy that engaged “in a highly individualized, holistic review of each applicant’s file, giving serious consideration to all the ways an applicant might contribute to a diverse educational environment” .
O’Connor’s arguments are very insightful, despite its rather bland style. The issue in focus in her essay is diversity. As globalization seeps into virtually all organizations, rapid changes have been occurring in whether school or workplace to suit the needs of the changing environment and people that compose organizations. As we all are aware, schools can hardly be a domain of freedom, equality, or democracy. Most people have little choice about whether to work and study and a little choice about whom they deal with on a daily basis. Interaction among students is often compelled by instructors and school administrators; it is constrained by rules and duties and the threat of discipline or discharge, and it all takes place within a context of economic power. Moreover, universities are subject to a staggering array of governmental regulations governing many aspects of the composition, organization, and admission of students. How did O’Connor represent this issue in the case? The majority decision put diversity in the cornerstone of their argument the university should be given a free rein to consider race and ethnicity in their admission process. O’Connor supposed in her essay that the U.S. Constitution “does not prohibit the law school’s narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body”(p. 138). We could thus deem that the majority decision is giving due importance to maintaining diversity in their school and it is definitely not discrimination if a school will deny admissions to a white female like Grutter.
Another issue in the essay by O’Connor is affirmative action. These are a collection of policies and procedures designed to overcome past racial, ethnic, gender, and disability discrimination, which was one outcome of the civil rights movement of the 1960s. Affirmative action was based on the belief that merely outlawing discrimination was not enough; to correct past discriminatory practices, society should take steps that would ensure racial and gender equity and balance in all aspects of society.
There are many political views about affirmative action. Libertarian thinkers argue that employers have a moral right to choose their own workers, using whatever criteria they wish. A more common libertarian argument is that social and economic benefits should be distributed on the basis of colorblind principles of entitlement, merit, and personal fault. In liberal academic and intellectual circles, opponents of affirmative action have questioned the coherence of the idea that blacks as a group are entitled to merit or deserve affirmative action as compensation or reparations for past wrongdoing (Sher, 1997). Genuine corrective justice, some philosophers say, is both causal and relational. That is, when an injury occurs, the person who caused that injury must personally pay his or her victim. On the other hand, conservative critics of affirmative action have pointed to the overwhelming consensus on requirements of color blindness shown in these debates to prove that affirmative action policy, in the controversial, race-conscious form it developed in the 1970s, violated the Civil Rights Act itself. Conservative ideologies seek to eliminate entitlement programs that benefit the poor by tapping into both the racism that has become increasingly legitimate since the Reagan administration and the fear engendered by the growing scarcity of jobs and economic opportunity (Stein, 1995). Social democrats, like D.S. Hook (1987) attacks affirmative action as the “immoral practice of reverse discrimination”. Although most Americans say they believe that minorities and women deserve a truly equal chance at jobs and other opportunities, they also say they worry that aggressive affirmative action programs will discriminate against more qualified males, an outcome that is called reverse discrimination.
As realized in how the majority decision of O’Connor, there is no “reverse discrimination” that occurred. Any school system, which may or may not has been under court order, attempts to have their community’s diversity reflected in classes, schools, and/or enrichment programs. In their attempt to accomplish such diversity, school systems should be allowed to employ admissions schemes to ensure that members of a minority group are properly represented. These schemes have included magnet schools, preferences, set-asides, underrepresentation racial balancing, racial quota, controlled choice, and weighted lottery. Of course, these schemes have been legally challenged by white students who are denied access to a neighborhood school or an enrichment program, although they have higher scores than minority students who have been accepted. However, the Law School can decide to admit lower scored minorities like Hispanics and Blacks because they typically have lower scores than their White counterparts. Lower scores for these minorities can be explained because of their lower economic status and their lack of access to appropriate educational resources. Thus, the University of Michigan Law School’s free reign to their admissions was supported by the majority of the justices in the case filed by Grutter.
What Justice O’Connor explained is that there is a new standard for federal programs that these had to be “pervasive, systematic, and obstinate discriminatory conduct” against minorities. Moreover, the Court did not mention women, who also had some protection from the program, and stopped short of declaring affirmative action unconstitutional. In fact, O’Connor noted the “unhappy persistence” of racial discrimination in the nation and that the “government is not disqualified from acting”. The immediate result was to send the case back to lower courts to determine if the subcontractor set-aside could survive strict scrutiny if there was sufficient proof that minorities had been systematically excluded from the specific market, not just a vague pattern of discrimination against a minority group.
We should learn in this reading that affirmative action is the belief that individuals who have been denied educational, economic, and social advantages cannot be expected to compete for admission to college or for jobs with the advantaged majority. The reason that giving special consideration to such individuals is the only fair approach. On the other hand, opponents of affirmative action claim that places in college and jobs should go to the most prepared students, regardless of race, ethnicity, or gender. This is where the essay of O’Connor succeeds in explaining that it chose to stand by its decision that the UMSL should maintain its policy of diversity, to give all races and ethnicities a representation in their admission process.
- Hook, D. Sidney. Out of Step: An Unquiet Life in the Twentieth Century, New York: Harper & Row, 1987.
- O’Connor, Sandra Day. “From the Majority Opinion in Grutter v. Bollinger.” Current Issues and Enduring Questions. Boston: Bedford/St. Martin’s, 2005, pp. 132-138
- Sher, George. Approximate Justice: Studies in Non-Ideal Theory, Lanham: Rowman & Littlefield, 1997.
- Stein, Nancy. Affirmative Action and the Persistence of Racism. Social Justice, (1995): 28-43.