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发帖数: 1208 | 1 Why Racial Preferences are Wrong by The Asian American Legal Foundation("
AALF") Please visit https://www.facebook.com/AgainstAA
Proponents of racial preferences generally argue that such preferences
should be allowed where the goals of the government program are benign and
the program is designed to help disadvantaged groups. However, the issue is
not whether the motives of the institution are benign, or even whether “
historically disadvantaged” groups benefit from the challenged program, but
whether individuals are unlawfully subjected to racial classifications.
The United States Constitution provides that, “No State shall . . .
deny to any person within its jurisdiction the equal protection of the laws.
” Fourteenth Amendment, U.S. Constitution. Some State constituitions go
even further in protecting individual rights. For example, drawing on
California’s long experience with discrimination, much of it aimed at Asian
Americans, the California Constitution provides that, “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.
” Art. I, Sec. 31, California Constitution.
The United States Constitutution protects individuals, not groups. As
the Supreme Court has repeatedly emphasized, the “rights created by the
first section of the Fourteenth Amendment are, by its terms, guaranteed to
the individual.” Shelley v. Kraemer, 334 U.S. 1, 22 (1948). Thus, as the
Supreme Court declared in its landmark decision in Adarand Constructors, Inc
. v. Pena, 515 U.S. 200, 227 (1995), there are no “benign” racial
classifications. “[T]he Fifth and Fourteenth Amendments to the Constitution
protect persons, not groups. It follows from that principle that all
governmental action based on race . . . should be subjected to detailed
judicial inquiry to ensure that the personal right to equal protection of
the laws has not been infringed.” 515 U.S. at 227.
As the United States Supreme Court has explained, “Classifications of
citizens solely on the basis of race ‘are by their very nature odious to a
free people whose institutions are founded upon the doctrine of equality.’
” Shaw v. Reno, 509 U.S. 630, 643 (1993) (quoting Hirabayashi v. United
States, 320 U.S. 81, 100 (1943)). Use of race “threaten[s] to stigmatize
individuals by reason of their membership in a racial group and to incite
racial hostility.” Shaw at 643. "One of the principal reasons race is
treated as a forbidden classification is that it demeans the dignity and
worth of a person to be judged by ancestry instead of his or her own merit
and essential qualities." Rice v. Cayetano, 528 U.S. 495, 517 (2000).
The "dirty little secret" behind every program of preferences is that,
in order to provide preferences to individuals of one group, individual of
other groups must be "disfavored." In College admissions, the burden of
affirmative action programs falls heaviest on individual applicants
identified as "Asian American." See Thomas J. Espenshade, Chang Y. Chung,
The Opportunity Cost of Admission Preferences at Elite Universities, Social
Scient Quarterly (Vol. 86, No. 2, June 2005). At some universities, 4 out
of 5 positions awarded to "minorities" under affirmative actions programs
would otherwise have gone to Asian American students. Id. at 303-304. This
practice is wrong on several levels: it arbitrarily classifies students
from a wide range of ethnicities and backgrounds as "Asian American"; and it
discriminates against individuals, who have a constitutional right to be
considered as individuals, not as faceless members of a "race."
Furthermore, unless the program of preferences is necessary to restore
infringed constitutional rights, even those person supposedly "benefited" by
the program are, in fact, harmed in that their right to be free from racial
classifications has been violated. That is, constitutional injury is
caused by imposition of the classification itself. As the United States
Supreme Court explained in a case in which a city classified contractors by
race, “The ‘injury in fact’ in an equal protection case of this variety
is the denial of equal treatment resulting from the imposition of the
barrier, not the ultimate inability to obtain the benefit.” Northeastern
Fla. Ch. Of Assoc. Gen. Contractors of America v. City of Jacksonville, 508
U.S. 656, 666 (1993).
Because of the harm caused individuals by imposition of racial
classifications, all programs classifying individuals by race must be
examined under "strict scrutiny." Under this legal standard, there is a
presumption that any governmental classification by race and gender is a
violation of the Fourteenth Amendment’s guarantee of the “equal protection
of the laws.” Such a program will be allowed by courts to continue only if
it is "narrowly tailored" to address a "compelling government interest,"
such as de jure, or intentional, segregation by the institution in question.
See Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995). This
justification for imposition of racial/gender preferences is rarely present.
In short, racial classifications by their nature demean and harm
individuals, and are thus presumptively unlawful. See Connerly v. State
Pers. Bd., 92 Cal. App. 4th 16, 33, 36 (2001). Classifications by gender
are similarly “suspect,” because, “[s]ex, like race and lineage, is an
immutable trait, a status into which the class members are locked by the
accident of birth.” Sail’er Inn, Inc. v. Kirby, 5 Cal. 3d 1, 17 (1971);
see Bobb v. Municipal Court (People), 192 Cal.Ap.3d 860, 192 Cal. Rptr. 270,
272 (1983).
The wisdom of a standard which considers all race/gender classifications
inherently suspect is demonstrated by the long history of Asian Americans
in this country. In every instance in which group identity was elevated
above individual rights, individuals suffered discrimination. And, in case
after case where Asian Americans faced racial discrimination, some of it
well-intentioned and supported by the "public policy" of the times, their
rights were vindicated only by strict application of the laws protecting
individual rights. That lesson is no less valid today. |
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