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The 14th Amendment to the U.S. Constitution, in part, reads as follows: “no state shall make or enforce …nor deny to any person within its jurisdiction the equal protection of the law. “ The equal protection clause of the 14th Amendment prohibits most discrimination on the basis of race and gender, and also alienage and national origin. Colleges and universities receiving federal or state funds must comply with the 14th Amendment.
In a 2016 landmark U.S. Supreme Court decision (Fisher v. University of Texas), the Court held that the University of Texas’ use of race as a factor in the holistic review was narrowly tailored to serve a compelling state interest (“strict scrutiny” test) of diversity, and therefore constitutional under the 14th Amendment. Previous precedent (Grutter v. Bollinger) had established that educational diversity is a compelling interest as long as it is expressed as a concrete and precise goal that is neither a quota of minority students nor an amorphous idea of diversity.
As you know from your readings, the primary goal of affirmative action programs is to redress past discrimination. It can also serve the purpose of assuring the make up a college student body that is similar to the community outside the academic institution. It has a further goal of increasing the likelihood of social and economic mobility for those protected classes historically discriminated against. Many states, including California, have banned preferential treatment on the basis of race, sex, color, ethnicity, or national origin in public education including in the admission process.
A few years ago, a group of Asian-Americans brought suit against Harvard University (and other prominent colleges) arguing Harvard discriminates against Asia-American applicants. It further argued, Harvard has engaged in illegal racial balancing or quotas and it places too great emphasis on race as a determinative factor in admissions.
To buttress these arguments, it cites the following uncontroverted statistics. The average Asian-American applicant needs to score 150 more points on its SAT exam than the average white applicant and 250 more points on its SAT exam than the average African-American and Latino applicant to be considered for admission. That the percentage (around 25%) of Asian-Americans admitted into Harvard has not varied over the past 6 years. (Asian-Americans make up 6% of U.S. population) Historically, as part of Harvard’s subjective review of applicants, Asian-Americans receive the lowest “personal” ratings of all racial or ethnic groups. In part, these personal ratings consist of leadership, communication skills, community involvement, expected contribution to the college campus, etc. ratings that were largely derived from high school teacher recommendations. The plaintiff argues Harvard could ignore race and instead give preference to low-income students (or use zip codes) as a way of increasing the diversity of the student body.
In response to the plaintiff’s discrimination (intentional and unintentional) lawsuit, the defendant, Harvard, argues: It considers race, alongside many other factors (some objective like SAT scores and GPA and some subjective like personal recommendations) to help the school achieve its goal of creating a diverse student body that enriches the education of every student. Further, Harvard states, every student admitted has something unique to offer its academic community.  Finally, Harvard believes its admission program has been designed and implemented in a manner that allows every application to be reviewed in a holistic manner consistent with the guidelines set forth by the Supreme Court. Harvard admits it could select a class with perfect SAT scores and GPA averages, but chooses not to do so. Around 14% of Harvard’s undergraduate student body are African-American, and around 12% are Latino.
For this assignment, the class is broken into 3 groups. One group (plaintiff) will review the facts given plus any other researched facts and argue Harvard’s admission policy is an illegal form of affirmative action in violation of the Equal Protection clause. A second group (defendant) will take the position that Harvard’s admission policy is not discriminatory, and, in fact, the policy and practice is a lawful form of affirmative action as authorized by Supreme Court precedent. This group must identify the ethical, societal, and legal benefits that ensue from this form of affirmative action in higher education admissions, whereas the plaintiff is expected to present counter-arguments. The third group (Court) will serve as the Supreme Court and after hearing both sides will decide whether Harvard’s admission policy is consistent with the Equal Protection clause or not. There is nothing to prevent the 3rd group from establishing new legal precedent on this issue. The winning side earns an extra point on the 5 point in-class graded assignment.

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