[Date Prev][Date Next][Thread Prev][Thread Next]
Return to main CEDA-L Archive Page
- To: Jorge Medina <Tiza@msn.com>
- Subject: RE:medina,dallas,aa
- From: William E Newnam <email@example.com>
- Date: Fri, 23 May 1997 09:58:25 -0400 (EDT)
I don't at all disagree that this would be a good topic. I helped to
write it. However, I just want folks to understand the complexity of
strict scrutiny and its potential implications. While I agree that Aff
action is not dead, there are many authors who conclude that strict
scrutiny virtually eliminates affirmative action for the reasons I have
mentioned. I am not attempting to say who is correct here, merely that
1. strict scrutiny is difficult to meet and,
2. that court disads (uniqueness and turn problems admitted) will be
argued at least at the beginning.
On Thu, 22 May 1997, Jorge Medina wrote:
> William Newman writes:
> >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.
> 1. Of course there is literature out there that is specific to groups and
> agencies. Also it isn't a big deal for the aff to include it, it's called
> harms evidence all cases need it. Also I think that Mr. Newman is being a bit
> rigid on the meaning of narrowly taliored. Nowhere in case law does it say
> that to be narrowly tailored you must be limited to a certain agency or
> contract. All narrowly tailored say it that it can on be over broad. If x
> group is being discrimnated against, then you can't have a policy that
> impements aff. action for groups x, y, and z. You can only solve for x. The
> law basically must stay in the scope of the past discrimination.
> >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.
> I'm not saying that judges will not apply the strict scrutiny standard in the
> round; all that I 'm saying is that we can assume that critic x is going to
> have the same views on strict scrutiny as Justice O'Connor.
> 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.)
> On the first you are assuming that there is no way aff's can meet strict
> scrutiny. Let's remember that the court never said that the policy in Pena was
> unconstitutional they remaned it back to the lower court. Also remember the
> quote from my original response to strict scrutiny from the majority opinion:
> "The unhappy persistance of both the practice and lingering effects of racial
> discrimination against minority groups in this country is unfortunate and
> government is not disqualified from acting in response to discrimination". Aff
> action isn't outlawed. On the second, for our purposes the critc is n the back
> of the room is the supreme court if that person says it's ok then by golly it
> is. Also the Strict Scrutiny (Pena) opinion is total activism, they overrule
> Metro, and go against what they said in Cohsen v. Richmond. I don't see why
> overturning Pena in itself wouldn't be a good case. And come on you are
> telling me that activism is a problem, it happens all the time.
> >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).
> Why is this a bad thing? These things sound very debateable to me.
> >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.
> When everyone is talking about to many aff cases why isn't this a good way to
> limit. Also I don't think that the standard is as hard to meet as is being
> made to sound when it comes to Aff Action. I think that there is ground here
> for some good debates, and can anyone say generic neg positions.
> Jorge Medina
> SFSU Debate
Archive created by Jonathan Stanton (firstname.lastname@example.org)
Return to main CEDA-L Archive Page