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RE:medina,dallas,aa



On Wed, 21 May 1997, Jorge Medina wrote:

> Dallas Perkins writes:
> >Mr. Medina correctly notes that affirmative action is not per se illegal,
> >only subject to strict scrutiny.  True.  However, be advised that no
> >governmental policy has EVER withstood strict scrutiny.  The standard is a
> >bit more demanding than Jorge implies:  
> 
> This is a good point, however Dallas is assuming that judges in a debate round 
> are going to interperate strict scrutiny the same way that the Supreme Court 
> does. I really don't think that the debate community for the most part will 
> hold aff's. to the same standard under strict scrutiny then  the Supreme 
> Court. If the aff. is narrowly tailored and furthers some governmental 
> interest I think must critics will allow it.
> 
Many arguments are implicated by the strict scrutiny standard.  First, it
is the status quo, meaning that the court has currently narrowed
affirmative action programs to programs designed narrowly to remedy a
specific instance of discrimination (meaning by the agency, within the
field, or by the government contractor).  This means that:

a.  the affirmative is limited to cases which can remedy specific
instances of discrimination.  I do not believe that there is much
literature to support such specific instances.

b.  the affirmative must violate the strict scrutiny standard (which is
what Mr. Medina infers will happen, I assume, when he argues that judges
will not apply it in debate rounds).  If the affirmative violates the
standards two things can happen:

	1.  The supreme court would overrule and gut such a plan, or
	2   carve an exception for the affirmative plan (leading to
bizarre court credibility and activism arguments (and negative's will also
be able to defend that strict scrutiny is good since affirmative action,
absent strict scrutiny, does violate the fourteenth amendment.)

c.  the affirmative will be required to overrule the strict scrutiny
standard setting up debates about court v. congress, activism,
credibility, and other kinds of arguments.(as well as allowing the
negative to defend any affirmative action program must meet strict
scrutiny or violate the fourteenth amendment).

d.  the affirmative must pass a constitutional amendment 

In short, in order to implement and affirmative action program either the
court has to acquiesce, there needs to be a constitutional amendment, the
affirmative has to prove that the plan can meet standard, or the
legislature must trump the court.
References:
Archive created by Jonathan Stanton (jonathan@cs.jhu.edu)
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