Scrutiny and Affirmative Action
The three concepts of rational basis, heightened scrutiny, as well as strict scrutiny, are embedded deeply in our personal understanding of how equal protection operates. A law passes its basis test if there is a reasonable relationship between the legitimate government purpose and the law (Cahn, 2013). Strict scrutiny has demonstrated to be strict in theory, but in fact, it is fatal, but empirical research did demonstrate that the application of strict scrutiny in court is not so fatal as many scholars think. In this section, we shall examine and also assess how strict scrutiny has been used to analyze affirmative action cases.
Strict scrutiny presents an accurate description of the actions taken by the courts when they are faced with issues to do with racial discrimination by the government (Deo, 2013). Affirmative action is one of the heavily litigated issues that involve race and the constitution. It has overwhelmed a majority of cases especially in situations when the federal courts have applied strict scrutiny to a race-conscious action by the government, especially when race-conscious restricting represents a majority of the cases (Deo, 2013). There are two kinds of affirmative action programs; the remedial affirmative action programs that are designed to compensate for either direct or indirect government discrimination and diversity-based affirmative action that promote diverse dialogue, especially in educational institutions (Cahn, 2013).
The first remedial action upheld by the Supreme Court occurred during the 1986 decision in the case of Local 28 of the Sheet Metal Workers International Association v. EEOC, and also in 1987 in United States v. Paradise (Cahn, 2013). The cases involved job discrimination against the African Americans, but the case petitioners resisted the court orders to remedy discrimination. The court responded by imposing stringent affirmative action requirements to Local 28 and the Alabama Department of Public Safety (Deo, 2013). Application of strict scrutiny by the Supreme Court ensured that these orders were upheld. The Supreme Court has constantly held that the government has interest in remedying the past as well as the present discrimination, and the interest also includes rectifying the indirect discrimination that arises from the government (Deo, 2013).
The courts have constantly proven that it is quick to apply strict scrutiny to affirmative action other than racial restricting, as it requires a stronger evidence that there is an existence of compelling interest for the racial-conscious remedies (Deo, 2013). Several cases have demonstrated how high the court has set its bar regarding remedial affirmative action programs and also how different strict scrutiny in these cases is from the scrutiny that is applied in racial restricting cases (Cahn, 2013). Contrast to that, and the court has continuously held that it applies strict scrutiny to all cases where the government uses racial classification. In the case of City of Richmond v. Croson, the court agreed that the Fourteenth Amendment requires strict scrutiny to all race-based actions by either state or local governments (Deo, 2013). The court has never refused to apply strict scrutiny in the case that use of race in remedial action plan was not predominant. The court has however been adamant where there is no compelling reason to have a remedial affirmative action without of proof of intentional discrimination by the government or by money. Even in cases where racial discrimination from the government is severe and direct, the court requires temporary affirmative action plans (Cahn, 2013). It can be established that strict scrutiny tests have little substance because they address two different policy issues.
The diversity-based affirmative action is much oriented towards the future, and it helps graduates develop a wider understanding of the world. The first such affirmative case was in 1978 compelling the government interest for public universities (Garces, 2012). The case of Regents of the University of California v. Bakke was sued for rejecting a white applicant, Allan Bakke who had higher scores and averages compared to other students admitted to the medical program. The majority ruling was written by Louis Powell, stating that strict scrutiny applied to affirmative action programs, it rejected government interest that had been put forward by the government, for instance, compensating racial discrimination, but acknowledged achieving student diversity, and it also held that the affirmative action was held narrowly to achieve diversity if individual applicant was considered, with ethnic and race a plus factor (Garces, 2012). The Grutter case saw the court upholding affirmative action programs of the law school because Grutter challenged affirmative action plan by urging that to achieve a critical mass of minorities required the law to give a larger advantage to those minorities in gaining admission. In the Gutter case, the court mentioned the application of remedial affirmative action cases, and the review was closer to rational basis (Cahn, 2013).
Based on these arguments we can establish that strict scrutiny on both affirmative actions are similar in several ways because all tend to be labeled as strict scrutiny regardless the predominance of race. The court applied strict scrutiny in cases where government touched upon the ethnic or racial characteristics of an individual. It can be argued out that strict scrutiny, is mainly applied in cases where the government interests are involved in most cases hence it is not a sound policy for handling affirmative action cases because it is still subject to manipulations.
Polis and Market
In this section, we shall examine the difference between market and polis and make an argument on which model better understands public policy (Birkland, 2014). Policy politics starts from simple models, and Polis, a Greek word for city-states, fits the model of the political society as it conjures an entity that is small with simple organization forms, and large enough to embody simple political elements. A market, on the other hand, is a social system where individuals pursue their welfare, and exchange things with others during instances when trade is mutually beneficial. There are several differences between a market and polis (Birkland, 2014). In a market, individuals act to maximize their own self-interests, by self-interest, in this case, include the well-being of the family and friends. Competitiveness in the market drive one to maximize their own welfare hence making people creative, resourceful, productive, and clever. Competition raises the level of economic well-being of the society as a whole. In the market, the resources are scarce hence competition is the only means of success (Stone, 1997).
Polis, on the other hand, considers the community as a major unit of composition with the will, goals, ideas among others outside an individual. The interest of the public is beyond self-interest. The policy problems are considered problems of commons (Stone, 1997). The major forms of interactions arise from coercion, cooperation and loyalty. The organizations as well as groups are considered as the building blocks of a given community and information is never considered perfect. Some resources in the polis model are scare and rivalries, but a majority of these resources are abundant and anti-rivalrous (Birkland, 2014). The concept of public interest in the polis could mean several things include individual interests that are held in common, the things that people want for themselves, for instance, high standard of living. It could also mean the goals of consensus, or it could be programs and policies that favor a majority of individuals, and in this case, it would be the public interest. Public interests could mean things that favor a community (Stone, 1997).
Polis model bests understand public policy because the polis model considers the concept of public interest, which constitutes goals, common interests, and any other thing that is good for the society (Stone, 1997). The polis model possesses several advantages compared to the market model, that is the reason a majority of public policies are created based on the concept of communities and not mere individuals, as in the case of market model. Although the market model also considers the public interest as the net interest among individuals that ate pursuing self-interest. The polis model is characterized by special challenges, that is how to combine the concept of self and public interest, that is finding the balance between the public and private benefits (Stone, 1997). In situations where self-interest work against the public interest, then the problem becomes a commons problem. The common problems require collective problems, and that is where the development of a common solution through policy comes in (Birkland, 2014). The vast gap that exists between self-interest and public interest can be seal by inserting potent forces such cooperation, influence, and loyalty. Influence is inherent in communities, and where common problems exist, people can influence each other to create a suitable policy.
Just like competition, cooperation in the polis model is crucial because politics involves seeking allies, to solve an issue between competing opponents (Stone, 1997). Cooperation is critical for power in politics; therefore, it is easier to develop policies to exert power further when there is cooperation. Unlike the market model, competition drives the day, hence cooperation lacks (Stone, 1997). Loyalty is also crucial in the polis model because political alliances are not perfectly stable. The presumption of loyalty in polis model makes it easier for policies to be developed that possess few weaknesses to be developed unlike the market model, where such loyalties are not very evident due to competition (Birkland, 2014).
The Concept of Equity
The concept of equity has constantly been debated over the years by scholars. Equity takes different definitions based on the context that one is defining from. In our case, equity can be defined as the impartial and fair treatment of people, or fair and impartial distribution of resources among different parties (Birkland, 2014). In this section, we shall argue which dimensions are the proper way to distribute government benefits based on equity.
Stone uses an example of cake in her description of the membership-based forms of equity (Stone, 1997). She discusses, the concept of equal distribution of resources to unequal number of people, which is often the most common form of inequity in the society, and it is where the concept of corruption stems from; she also describes equal and unequal ranks, and in this case, she outlines the pay-scales that are used by government and the market-based pay structures that encourage discrimination (Stone, 1997). Regarding item-based forms of equity, and she outlines the distribution of unequal cake slices to equal meals as in the case of financial awards that are paid post-military service, unequal slices of the case given to equal value recipients as in the case of programs that serve people with disabilities, and welfare in the economic perspective. In process-based forms of equity, she provides examples of unequal slices, to programs with equal starting resources as in the case of the education system, unequal resources but equal statistical chances, unequal slices, but equal votes, and in the case of the logic behind democracy (Stone, 1997).
Based on these examples, stone identifies unequal outcomes in each case and even in the case where resources are distributed equally but only invited individually is close to equity, but it still represents a challenge (Birkla...
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