Gale Encyclopedia Of American Law 3Rd Edition Volume 1 P18 pot

husband and his wife’s relations by blood, or between the wife and the husband’s relations by blood. Secondary affinity is between a spouse and the other spouse’s relatives by marriage. Collateral affinity exists between a spouse and the relatives of the other spouse’s relatives. The determination of affinity is important in various legal matters, such as deciding whether to PROSECUTE a person fo r INCEST or whether to disqualify a juror for bias. AFFIRM To ratify, establish, or reassert. To make a solemn and formal declaration, as a substitute for an oath, that the statements contained in an affidavit are true or that a witness will tell the truth. In the practice of appellate courts, to declare a judgment, decree, or order valid and to concur in its correctness so that it must stand as rendered in the lower court. As a matter of pleading, to allege or aver a matter of fact. A judgment, decree, or order that is not affirmed is either remanded (sent back to the lower court with instructions to correct the irregularities noted in the appellate opinion) or reversed (changed by the appellate court so that the decision of the lower court is overturned). AFFIRMANCE A declaration by an appellate court that a judgment, order, or decree of a lower court that has been brought before it for review is valid and will be upheld. AFFIRMATION A solemn and formal declaration of the truth of a statement, such as an affidavit or the actual or prospective testimony of a witness or a party that takes the place of an oath. An affirmation is also used when a person cannot take an oath because of religious convictions. AFFIRMATIVE ACTION Employment programs required by federal statutes and regulations designed to remedy discriminatory practices in hiring minority group members; i.e., positive steps designed to eliminate existing and continuing discrimination, to remedy lingering effects of past discrimination, and to create systems and procedures to prevent future discrimination; commonly based on population percentages of minority groups in a particular area. Factors considered are race, color, sex, creed, and age. The idea of affirmative action was foresha- dowed as early as the Reconstruction Era, which followed the U.S. CIVIL WAR. When that conflict ended, the former slave population throughout the South owned virtually nothing and had only a limited set of skills with which they could make a living. To help these newly emancipated citizens sustain a minimal economic base, the victorious ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PERMISSION OF GALE, APARTOFCENGAGE LEARNING. Percentage Distribution of Students Enrolled in Degree-Granting Institutions a , by Race/Ethnicity Race/ethnicity Percentage of total enrolled students 0 10 20 30 40 50 60 70 80 90 100 a Accounts for both two- and four-year institutions. SOURCE: U.S. Department of Education, National Center for Education Statistics, Digest of Education Statistics, 2007. 84.3 White 67.4 9.6 13.3 Black 3.6 Hispanic 11.4 1.8 Asian/Pacific Islander 6.8 1.1 American Indian/Alaska Native 0.7 1976 2006 GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 158 AFFIRM General William T. Sherman proposed to divide up the land and goods from the sizable planta- tions of southeastern Georgia that were under his command and grant to each fam ily of color “40 acres and a mule.” The proposal ran into powerful political opposition, however, and it was never widely adopted. Nearly a century later, this idea of assisting whole classes of individuals to gain access to the goods of U.S. life reemerged in U.S. law and society through a series of court decisions and political initiatives interpreting the CIVIL RIGHTS guarantees within the EQUAL PROTECTION Clause of the FOURTEENTH AMENDMENT. These decisions and initiatives came to be known as affirmative action. The term itself refers to both mandatory and voluntary programs intended to affirm the civil rights of designated classes of individuals by taking positive action to protect them from, in the words of Justice William J. Brennan Jr., “the lingering effects of pervasive discrimination” (Local 28 of the Sheet Metal Workers’ International Association v. EEOC, 478 U.S. 421, 106 S. Ct. 3019, 92 L. Ed. 2d 344 [1986]). A law school, for example, might voluntarily take affirmative action to find and admit qualified students of color. An employer might recruit qualified women where only men have worked before, such as businesses that operate heavy equipment. Affirmative action developed during the four decades following the decision in Brown v. Board of Education, 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873 (1954). In Brown, the Supreme Court held that public school SEGREGATION of children by race denied minority children equal educa- tional opportunities, rejecting the doctrine of “separate but equal” in the public education context. During the 1960s and early 1970s, the CIVIL RIGHTS MOVEMENT as well as the VIETNAM WAR inspired members of minorities and women to advocate collectively for increased equality and opportunity within U.S. society. These groups appealed for equal rights under the Fourteenth Amendment, and they sought opportunity in the public arenas of education and employment. In many ways, they were successful. As affirmative action grew, however, it drew increasing criti- cism, often from men and whites, who opposed what they viewed as “reverse discrimination.” While the Brown decision declared segregat- ed schools unlawful, it did not create affirmative action to remedy discriminatory practices. A decade after Brown, little had change d to integrate the nation’s schools. The Court acted ahead of business executives and legislatures when it mandated, in Green v. County School Board, 391 U.S. 430, 88 S. Ct. 1689, 20 L. Ed. 2d 716 (1968), that positive actions must be taken to integrate schools. There followed the adop- tion of an array of devices such as redistricting, majority-to-minority transfers, school pairings, magnet schools, busing, new construction, and abandonment of all-black schools. The first major legal setback for voluntary affirmation action was the decision in Regents of the University of California v. Bakke, 438 U.S. 265, 98 S. Ct. 2733, 57 L. Ed. 2d 750 (1978), in which the Supreme Court struck down an admissions plan at the University of California, Davis, medical school. The plan, which had SET ASIDE 16 places for minority applicants, was challenged by white applicant Allan Bakke, who had been refused admission even though he had higher test scores than some of the minority applicants. The Court held that by setting aside a specific number, or quota, of places by race, the school had violated Bakke’s civil rights. By denying the “set-aside” practice of an affirmative action plan, the decision seemed to threaten the principle underlying affirmative action as well. The following year, however, the Court found in United Steelworkers v. Weber, 443 U.S. 193, 99 S. Ct. 2721, 61 L. Ed. 2d 480 (1979), that the voluntary plan of Kaiser Aluminum Com- pany to promote some of its black workers into a special training program ahead of more senior white workers did not violate the latter’scivil rights when it did not involve quotas. The Court also found in Local 28 of Sheet Metal Workers’ International Association v. EEOC, 478 U.S. 421, 106 S. Ct. 3019, 92 L. Ed. 2d 344 (1986), that rights were not being violated by a court- ordered me mbership goal of 29.23 percent minorities. Writing for the PLURALITY, Justice Brennan said Title VII of the Civil Rights Act of 1964 does not prohibi t courts from ordering “affirmative race-conscious relief as a remedy for past discrimination” in appropriate circum- stances. Such circumstances might include “where an employer or LABOR UNION has engaged in persistent or egregious DISCRIMINATION,or where necessary to dissipate the lingering effect of pervasive discrimination.” The Court later found, in City of Richmond v. J.A. Croson Co., 488 U.S. 469, 109 S. Ct. 706, 102 L. Ed. 2d 854 (1989), that the Minority Business GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION AFFIRMATIVE ACTION 159 Utilization Plan of Richmond, Virginia, violated the rights of private contractors. The plan, which required 30 percent of all subcontracts to be awarded to minority-owned companies, was struck down because this municipality had failed to show compelling STATE INTEREST for such a measure. The Court applied the compelling interest test after holding that race-based action by state and local government was subject to STRICT SCRUTINY. The Court extended this to the federal government in Adarand Constructors, Inc. v. Pena, 115 S. Ct. 2097, 132 L. Ed. 2d 158 (1995). In Johnson v. Transportation Agency, 480 U.S. 616, 107 S. Ct. 1442, 94 L. Ed. 2d 615 (1987), the Court ruled that a county agency had not violated Title VII of the Civil Rights Act when, as part of an affirmative action plan, it took a female employee’s gender into account in promoting her ahead of a male employee with a slightly higher test score. The Court held that a “manifest imbalance” existed in this workforce because of an underrepresentation of women, and that the employer had acted properly in using a “moder- ate, flexible, case-by-case approach to effecting a gradual improvement in the representation of minorities and women.” At issue in affirmative action cases is whether the Equal Protection Clause of the Fourteenth Amendment can be employed to advance the welfare of one class of individuals How Much Affirmative Action Is Enough Affirmative Action? I n the combustive debate over affirma- tive action, fairness is the hottest issue of all. Most people agree that employers should hire and promote people fairly. Does affirmative action make this happen? Americans disagree sharply: A July 1995 Associated Press poll found that 39 percent think it does, but 48 percent said giving preference to women and minorities produces even greater unfair- ness. These numbers barely scratch the surface of the antagonismsina debate now more than 30 years old. Proponents argue that the benefits of affirmative action policies are TANGIBLE, deserved, and neces- sary. Opponents reply that these benefits hide the real harm done by affirmative action: rewarding the wrong people, deva- luing the idea of merit, and punishing white men. The two sides disagree on what should be done, yet there is no shortage of ideas. In the 1990s a flurry of arguments came from politicians, academics, CIVIL RIGHTS leaders, and reformers that are aimed at preserving, modifying, or ending affirmative action. History has drastically rewritten the terms of this debate. In the years of great advances in federal civil rights, Presidents JOHN F. KENNEDY and LYNDON B. JOHNSON could easily frame the issue as a purely moral one. Johnson put it this way in 1965: Freedom is not enough You do not take a man who for years has been hobbled by chains, liberate him, bring him to the starting line of a race, saying, “you are free to compete with all the others,” and still justly believe you have been completely fair. Thus it is not enough to open the gates of opportunity. Thirty years later, Senate majority leader Bob Dole (R-Kan.) made this widely quoted attack: “The race-counting game has gone too far.” Polls indicate that both Johnson and Dole spoke for a majority of citizens of their time. Johnson captured the essence of a nation willing to move beyond the legacy of JIM CROW LAWS . Dole summoned the resent- ment of white males who had seen the affirmative action net expand to hold not only minorities but also women and immigrants. But white men are hardly the only complainers: According to a March 1995 Washington Post-ABC News poll, 79 percent of middle-class white women oppose preferences for women. For affirmative action’s strongest supporters, explaining the new harshness in the policy’s politics is a matter of going back to the beginning. They point out that affirmative action was never sup- posed to be painless. Making room for groups that have historically suffered DISCRIMINATION means that the very group that did not suffer—white males—now has to do so. This can be characterized as the sins-of-the-fathers argument, illus- trated in a 1995 briefing paper from the AMERICAN CIVIL LIBERTIES UNION (AC LU): “[W]hile it’struethatwhitemalesinany given era may not all h ave been responsible for excluding people of color and women, all white males have benefited unjustly from that historical exclusion [thus enjoying] privileged status and an unfair advantage.” This position is supported by statistics: in 1995 white males held nearly 95 percent of senior management positions in major corporations, earned 25 to 45 percent mor e than women and minor i- ties, and held well ove r 80 percent of the seats in Congress. On the other hand, from 197 3 to 1993, black pov erty increased from 31.4 to 33.1 p erce nt. Without doubt, discrimination con- tinues; from the perspective of suppor- ters of affirmative action, the sins of the fathers are far from paid for. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 160 AFFIRMATIVE ACTION for compelling social reasons even when that advancement may infringe in some way upon the life or liberty of another. The continuing existence of affirmative action laws and pro- grams suggests that, so far, the Supreme Court’s answer has been yes. Affirmative action plans may be undertaken voluntarily, as in the case of a private school’s admissions goals; imposed by the courts to protect civil rights; or required by law to qualify for federal contracts. Plans required to qualify for federal contracts are enforced by the Office of Federal Contract Compliance Programs (OFCCP), an agency of the U.S. LABOR DEPART- MENT . The OFCCP defines its mission with its critics in mind: “Affirmative action is not preferential treatment. Nor does it mean that unqualified persons should be hired or promot- ed over other people. What affirmative action does mean is that positive steps must be taken to provide equal employment opportunity” (EEOC, U.S. Labor Department, Pub. No. 2850, Making EEO and Affirmative Action Work 8 [1993]). One ranking OFCCP adminis- trator defended the program even more sharply by saying, “Affirmative action is not about goals and has nothing to do with preferences. It is about inclusion versus exclusion: people who have been excluded from participation in the process for years are now to be included.” Because equality still eludes the beneficiaries of affirmative action, sup- porters dismiss attacks on the policies as part of a backlash. Three decades of advances for affirmative action’s bene- ficiaries have meant diminished domi- nance for white men, a group whose income has been falling in real terms since 1973. But, supporters say, the reason white men earn less today than their fathers did is not the fault of affirmative action. They point to long- term changes in the U.S. economy and job market as the real explanations for stagnating incomes, diminishing buying power, and decreasing job security. Yet affirmative action gets the blame. “We are the ultimate scapegoat for whatever goes wrong,” Mary Frances Berry, chair- woman of the U.S. COMMISSION ON CIVIL RIGHTS , told the Boston Globe in 1995. Dwindling support from middle-class white women also draws the ire of affirmative action’s advocates. “In the 1970s and 80s, white women had no problem hitching up to the affirmative action banner of ‘women and min- orities,’” journalist Derrick Z. Jackson wrote. “If they now want to rip down the banner, it will confirm the dirtiest little secret of all about affirmative action”— that white women supported it only to the extent that it benefited themselves. Dismissing these explanations as excuses, critics of affirmative action de- nounce it as “reverse discrimination.” They either reject outright the idea that historical wrongs can be redressed through contem- porary means, or believe that the cost to those who must pay for such redress is too high. Conservative think tanks such as the Institute for Justice and the HERITAGE FOUNDATION regularly lead this prong of the attack. Clint Bolick, the Institute for Justice’s vice president, told Congressional Quarterly, “If you add up the number of people who have encountered reverse discriminationin college admissions, scho- larships, public school magnet programs, government contracts and jobs in the private and public sectors, you have a pretty sizable population.” The charge strikes the strongest advocates of affirma- tive action as insupportable. According to the research of law professor Alfred Blumrosen, of Rutgers University, only a few dozen such cases reached the federal courts in the early 1990s, and in most, the PLAINTIFF failed. Other advocates see the reverse discrimination argument as sour grapes; the ACLU goes so far as to call it a smoke screen “for retention of white male privilege.” Critics frequently argue that affirma- tive action does an injustice to the idea of merit. Organizations representing police officers and firefighters, such as the national Fraternal Order of Police, com- plain that qualifications and standards have fallen to accommodate affirmative action candidates. This criticism is popular not only with whites, who have long claimed that better qualified candidates lose out as a result of affirmative action, but also with two leading conservative African American critics. “What we’ve had to do for 25 years to pull off affirmative action,” the author Shelby Steele said, “is demean the idea of merit.” The economist Thomas Sowell advances much the same argument in his claim that the policy hurts African Amer- icans. Like other conservatives, Sowell ties the rise of affirmative action in the 1970s to the development of the black economic underclass. Steele and Sowell have argued that affirmative action sets up its benefici- aries for failure, corrupting the value of achievement for blacks and reinforcing racist stereotypes for whites. Viewing affirmative action as antidemocratic, they conclude that individual qualities alone should determine who is hired or accepted into an academic program. Advocates are highly suspicious of the merit argument. In the first place, they deny that creating opportunities ignores the value of personal merit. Voluntary affirmative action merely gives people who traditionally have been excluded a leg up, they assert; and when it is court ordered to redress a pattern of workplace discrimination, the question of merit misses the point. More crucially, supporters think the merit line is super- ficial. Political commentator Michael E. Kinsley quipped that critics “seem to imagine that everyone in America can be ranked with scientific precision, from No. 1 to No. 260,000,000, in terms of his or her qualification for any desirable career opportunity.” He and other GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION AFFIRMATIVE ACTION 161 Affirmation action plans are subject to mandatory compliance procedures, which may include monitoring by review, conciliation of disputes, exclusion from federal contract work, or even suit by the DEPARTMENT OF JUSTICE. Criticism of affirmative action has been constant since the Supreme Court first articu- lated its views. By the 1990s, opponents began to press the Court to reverse its precedents both in employment and in higher education admis- sion policies. Supp orters of affirmati ve action openly worried that the Court would severely restrict affirmative action. For example, in 1997, the Court was scheduled to hear an appeal involving a New Jersey schoolteacher who claimed she had suffered discrimination because of an improper affirmative action plan (Taxman v. Piscataway Township Board of Education,91 F.3d 1547 [3d. Cir. 1996]). Weeks before oral argument, supporters of affirmative action made the schoolteacher a financial SETTLEMENT in return for her dismissing the case. They admitted that this was hardly a victory, but supporters pointed to troubling developments. One of these de velopments was the Supreme Court’s refusal to review a decision that struck supporters consider the argument spe- cious in a society in which merit is often the last reason for success and other variables that give advantages to certain groups are deemed perfectly natural—the children of the rich attend the best schools regardless of their abilities, for example, and military veterans receive preferences whether or not they have personally sacrificed anything for the nation. The United States was never a meritocracy, asserts Laura Murphy Lee, director of the ACLU’s national legislative office: “Affir- mative action didn’t come along to taint a process that never existed.” Proposals for reforming affirmative action became increasingly popular in the mid-1990s. At one extreme, politicians have called for dumping it altogether. This idea has been urged in Congress chiefly by ultraconservative Republicans such as Senators Phil Gramm (R-Tex.) and JESSE HELMS (R-N.C.). Although no action has been taken on the congressional level, similar proposals in the states of California and Florida have gained ground. California reformers scored two victories in the mid-1990’s: First, in 1995, regents of the University of California, Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 98 S. Ct. 2733, 57 L. Ed. 2d 750 (1980) dropped gender- and race-based admissions, hiring, and contracting. Then, reformers succeeded in passing an anti-affirmative action referendum—the California Civil Rights Initiative, a mea- sure that would outlaw gender- and race-based preferences in government programs—in 1996. A similar REFERENDUM passed in Washington State in 1998. Less radical and perhaps more polit- ically feasible, another proposal calls for preserving affirmative action while shift- ing its emphasis. The idea would aban- don race and gender as yardsticks and match preferences solely with economic need. Conservatives again lead this campaign, but it draws some support even from moderates: President BILL CLINTON , declaring that his administration was against quotas and guaranteed results, ordered a review of federal employment policies in 1995 to ensure that they were being applied fairly. Critics of affirmative action believe that this kind of reform would ensure oppor- tunity for disadvantaged people while ending what they see as egregious abuses, such as the awarding of contracts to rich minority-owned businesses. Traditional supporters agree that affirmative action benefits do not always help the people who most need them. But they believe that substantial gains should not be reversed, and that any need-based measurement should only augment—not replace— existing policies. The journey of affirmative action from its heyday to the present reflects great changes in the United States. Between the administration of President Johnson and the Republican-controlled Congress elected in 1994 lies a thirty-year experience with GREAT SOCIETY initiatives that has left many citizens soured on the idea of government assistance. Radical changes in the nation’s economy and workforce have surely not made the journey any easier. Bridging this gap seems unlikely, given the vastly different history of white males on the one hand, and women and people of color on the other. From these two poles of experi- ence, two opposing ideas of necessity emerge. Critics say the time is ripe to overhaul affirmative action, a well-inten- tioned policy gone bad. Supporters, perceiving a playing field that is still far from level, maintain that the real work of affirmative action has scarcely begun. In the early 2000s, the battlefield for a ffir mative action has s hifted from How Much Affirmative Action Is Enough Affirmative Action? (Continued) GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 162 AFFIRMATIVE ACTION down a university admission plan that used race as one factor for acceptance. In Hopwood v. Texas, 78 F. 3d. 932 (5th Cir. 1996), the U.S. Court of Appeals for the Fifth Circuit ruled that the practice of providing preferential treatment to minorities in a public university’s admissions policy was repugnant to the Constitution. The University of Texas Law School imple- mented an admissions policy in which the standards for admission were lowered for minori- ties. The school employed an index (called the Texas Index, or TI) that combined standardized test scores with grade-point averages. A minimum score for acceptance was ten points higher for whites than for non-whites. The appeals court found problems with the structure of the TI. While minorities, specifically African Americans and Mexican Americans, earned scores sufficient to be categorized as “presumptive admits” (i.e.,- certain to be accepted), whites who received the same scores were categorized as “presumptive denials” (i.e., certain to be rejected). The court invalidated the admissions policy, concluding that using race as a criteria foradmissions isas arbitrary as using one’s blood type. In Grutter v. Bollinger, 539 U.S. 306, 123 S. Ct. 2325, 156 L.Ed.2d 304, the U.S. Supreme Court narrowly endorsed the use of race in choosing students for America’s top universities and the concept of racial diversity as a the workplace to education. Higher education—the arena that gave birth to Bakke, the first significant Supreme Court decision endorsing affirmative action—has more recently produced a mishmash of court decisions a nd l aws t hat have called into question the f uture of a ffirmative action. There were arguments not just how Bakke should be a pplied, but whether it should be applied at all. Higher education has been a partic- ularly contentious area on affirmative action for many reasons. Because many higher education institutions are public, there is an issue of whether taxpayer money should be going to institutions supporting affirmative action. The public status of colleges and universities also ensures that affirmative action debates will be conducted out in the open. Also, the quality and prestige of a college or university is often seen as determining where someone will end up on the socioeconomic scale after graduation, making the affirmative action stakes at such institutions high. In a reversal of the way they tolerated discrimination through most of the twen- tieth century, many colleges and universi- ties now seem anxious to employ affirma- tive action to increase the diversity of their campuses. Court cases litigating affirma- tive action in higher education are brought by disgruntled white students and parents claiming “reverse discrimina- tion” It has been the courts and the legislatures, not the colleges and the universities, that have shown willingness to put the brakes on affirmative action. The battle over Bakke and its effects on higher education swung into focus in 1996, when the 5th CIRCUIT COURT of Appeals struck down affirmative action in college admissions in their decision Hopwood v. Texas, 78 F.3d 932, 5th Cir. (Tex. 1996). The decision covered insti- tutions in the states of Texas, Louisiana, and Mississippi. Within a year o f that ruling, enrollments by minorities in higher education institutions dropped in all three states. In response, the state of Texas guaranteed a place in a state university or college to anyone who had graduated in the top 10 percent of their class. This gave more minorities a chance, and as a result minority enrollment at higher education institutions in the state was higher in 2001 than it was in the year before Hopwood . Several other states, including California and Florida, have adopted versions of Texas’“10 percent” solution. Critics have charged that these programs are inadequate, failing to ensure that minorities are represented at the most prestigious institutions even when they do boost enrollment in state university systems overall. The affirmative action focus in higher education has shifted over to the University of Michigan. White applicants to both the undergraduate school and the law school at the University of Michigan sued on reverse discrimination grounds. One U.S. district judge in Michigan upheld the undergraduate program, and another struck down the law school program. A divided Sixth Circuit Court of Appeals ruled in favor of the program in Grutter v. Bollinger, 288 F.3d 732, 6th Cir. (Mich. 2002) and the U.S Supreme Court agreed to hear the appeal of that decision. The Court upheld its decision in 2003. The administration of GEORGE W. BUSH filed a brief opposing Michigan’s affir- mative action program. “The method used by the University of Michigan to achieve this important goal is fundamen- tally flawed,” said President Bush in statement. Defending the policy, Michigan President Mary Sue Coleman said the President “misunderstands how our ad- mission process works” and denied it was unconstitutional. Who the Supreme Court decides is r ight may decide the future of affirmative action in America. FURTHER READINGS Buchanan, Sidney. 2002. “Affirmative Action: The Many Shades of Justice.” Houston Law Review 39 (summer). “Coloring the Campus.” 2001. Time Magazine (September 17). Goldstein, Amy, and Dana Milbank. 2003. “Bush Joins Admissions Case Fight; U- Mich. Use of Race Is Called ‘Divisive’.” Washington Post (January 16). GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION AFFIRMATIVE ACTION 163 compelling governmental interest. In a LANDMARK decision with wide-ranging implications for affirmative action programs across the United States, the Court ruled that it does not violate the Equal Protection Clause to give some preferential treatment to disadvantaged minorities, calling the diversity that minorities bring to education, business, and the military necessary for the cultivation of “a set of leaders with legitimacy in the eyes of the citizenry.” In that case, the Court held that promoting racial diversity on campuses not only serves a compelling government inter- est,butalsothatthelawschool’s admissions program was narrowly tailored and focused on each applicant as an individual as opposed to being a member of a particular racial group. However, the victory for affirmative action was conditional, as the Court emphasized that racial preferences should be a temporary, rather than permanent, fixture in American society, and called for “periodic reviews” and “sunset provi- sions” for race-conscious admissions. In the 5–4 decision, written by Justice Sandra Day O’Connor and joined by joined by Justices JOHN PAUL STEVENS, DAVID SOUTER , RUTH BADER GINSBURG , and STEPHEN BREYER, the Court ruled that attaining a diverse student body is at the heart of a law school’s proper institutional mission, and that GOOD FAITH on the part of a university in pursuing diversity should be presumed absent a showing to the contrary. The Supreme Court emphasized that the law school sought to enroll a “critical mass” of minority students, not simply to ensure that its student body had some specified percentage of a particular group. In concluding that the law school’s admissions policy was narrowly tailored, the Supreme Court stated that the policy did not operate as a quota, but used race as a “plus” factor, such that the policy was flexible enough to ensure that each applicant was evaluated as an individual. The PLAINTIFF was a white Michigan resident whose application was rejected by the law school. She alleged that her application was denied because the law school use d race as a “predominant factor. ” A district court agreed with the plaintiff, but the U.S. Court of Appeals for the Sixth Circuit reversed. In Gratz v. Bollinger, a separate 6–3 decision handed down the same day as Grutter v. Bollinger, the Court struck down a separate University of Michigan undergraduate-ad missions process based on a point system that rated students and awarded additional points to minorities. Because the admissions process made race a “decisive” factor, rather than just one of many in determin- ing who was admitted, the Court ruled that the formulaic approach was unconstitutional. Gratz v. Bollinger, 539 U.S. 244, 123 S. Ct. 2411, 156 L. Ed.2d 257. The opinion was delivered by Chief Justice WILLIAM REHNQUIST, who was joined by Justices O’Connor, ANTONIN SCALIA, ANTHONY KENNEDY , and CLARENCE THOMAS. This point-system ruling is expected to force state schools that use similar numerical meth- ods to revise them, and it could cause compa- nies to rethink their reliance on quantitative evaluations of job applicants and employees. Although Michigan is a public university, the decision is considered likely to apply to selective private universities as well, becaus e they receive government funding. It also will affect admis- sions practices at selective public high schools where affirmative action has also been eliminat- ed or curtailed. Distaste for affirmative action also led opponents to attack the policy at the state level through ballot initiatives and referendums. In November 1998 the California electorate passed Proposition 209 (54 to 46 percent), which banned many of the affirmative action programs in California. The REFERENDUM was promoted by the nonprofit Center for Individual Rights, which was also instrumental in building opposition to the University of Texas admissions policy that was struck down in Hopwood. The proposition has remained a controversial topic, with supp or- ters arguing that state and local officials have avoided dismantling affirmative action. These same supporters continue to call on state officials to enforce the law. Officials, however, have pointed out that under the proposition, when federal laws mandate affirmative action to qualify for federal monies, the state law must give way. In 1998 Washington State passed Initiative 200 and became the second state to abolish state affirmative action measures. The initiative is similar to that of California’s Proposition 209. In 2000 Florida became the first state to voluntarily end affirmative action in higher education and state contracts. Public universi- ties put into place new college admissions policies that prohibit affirmative action. One new component was the Talented 20 Plan, which mandates that students who graduate in the top 20 percent of their class and who GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 164 AFFIRMATIVE ACTION complete a college preparatory curriculum must be admitted into one of the ten state universi- ties. These changes were designed to increase opportunity and diversity while endin g racial preferences and set-a sides. On June 28, 2007, the Supreme Court issued a landmark decision in two joined cases involving race and public school systems. In Meredith v. Jefferson County Board of Education, and Parents Involved in Community Schools v. Seattle School District No. 1, the Court ruled that race cannot be a factor in assigning children to a particular public school. In both cases, the school districts used race as the primary factor in determining which school the students would attend in order to maintain some level of racial integration in the school districts. Chief Justice JOHN ROBERTS, writing for the majority, argued that racial integration does not justify assigning students to a school based on the racial category under which they fall. He further stated that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” The fate of affirmative action in this country is unclear. In November 2008 two states, Nebraska and Colorado, had ballot measures proposing to ban affirmative action preferences by public entities. The ban passed in Nebraska with more than 50 percent of the vote, whereas Colorado voters rejected the ban. FURTHER READINGS “Affirmative Action.” 1995. CQ Researcher. April 28. American Civil Liberties Union. 1995. Affirmative Action. Briefing paper no. 17, March 22. American Civil Liberties Union. 1995. The Case for Affirmative Action. July 1. Clinton, President Bill. 1995. Speech at the National Archives, July 31. Coyle, Marcia. 2003. “The Fallout Begins: In Its Final Week of the Term, the Supreme Court Hands Down Landmark Rulings That Give Legal Backing to Two Kinds of Diversity; Affirmative Action and Gay Rights.” The National Law Journal 25 (July 7). Curry, George E., and Cornel West, eds. 1996. The Affirmative Action Debate. New York: Perseus. Landsberg, Brian K. 2003. “Affirmative-Action Decision Indicated Shifts in Position.” The Los Angeles Daily Journal 116 (June 30). Marin, Patricia, and Catherine L. Horn, eds. 2008. Realizing Bakke’s Legacy: Affirmative Action, Equal Opportunity, and Access to Higher Education. Sterling, VA: Stylus Publishing. Rubio, Philip F. 2001. A History of Affirmative Action, 1619– 2000. Oxford: University Press of Mississippi. Schmidt, Peter. “Supreme Court Leaves Affirmative-Action Precedents Intact in Striking Down School-Integration Plans.” The Chronicle of Higher Education. Available online at http://chronicle.com/cgi2-bin/printable.cgi? article=http://chronicle.com/free/2007/06/2007062901n. htm; website home page: http://chronicle.com (accessed July 7, 2009). Mears, Bill. “Divided Court rejects school diversity plans.” Available online at http://cnn.com/2007/LAW/06/28/ scouts.race/index.html (accessed July 7, 2009). Brunner, Borga. “Timeline of Affirmative Action Mile- stones.” Available online at http://www.infoplease.com/ spot/affirmativetimeline1.html; website home page: http://www.infoplease.com (accessed July 7, 2009). CROSS REFERENCES Civil Rights Acts; Equal Employment Opportunity Com- mission; Seniority; Sex Discrimination. AFFIRMATIVE DEFENSE A new fact or set of facts that operates to defeat a claim even if the facts supporting that claim are true. A PLAINTIFF sets forth a claim in a CIVIL ACTION by making statements in the document called the complaint. These statements must be sufficient to warrant relief from the court. The DEFENDANT responds to the plaintiff’s claims by preparing an answer in which the defendant may deny the truth of the plaintiff’s allegations or assert that there are additional facts that constitute a defense to the plaintiff’s action. For e xa mple, a plaintiff m ay demand comp ensation for damage done to his or her vehicle in an a utomobile accident. Without denying responsibility for the accident, the defen- dant may claim to have an affirmative defense, such as the plaintiff’s contri butory NEGLIGENCE or expiration of the STATUTE OF LIMITATIONS. An affirmative defense is also allowed under rules of CRIMINAL PROCEDURE. For example, a defendant accused of ASSAULT may claim to have been intoxicated or insane, to have struck out in SELF-DEFENSE, or to have had an alibi for the night in question. Any one of these affirmative defenses must be asserted by showing that there are facts in addition to the ones in the INDICTMENT or information charging the defen- dant and that those additional facts are legally sufficient to excuse the defendant. The rules that govern pleading in most courts require a defendant to raise all affirma- tive defenses when first responding to the civil claim or criminal charges against him or her. Failure to do so may preclude assertion of that kind of defense later in the trial. AFFRAY A criminal offense generally defined as the fighting of two or more persons in a public place that disturbs others. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION AFFRAY 165 The offense originated under the COMMON LAW and in some jurisdictions has become a statutory crime. Although an agreement to fight is not an element of the crime under the common-law definition, some statutes provide that an affray can occur only when two or more persons agree to fight in a public place. An affray is a type of DISORDERLY CONDUCT and a BREACH OF THE PEACE since it is conduct that disturbs the peace of the community. It is punishable by a fine, IMPRISONMENT, or both. AFORESAID Before, already said, referred to, or recited. This term is used frequently in deeds, leases, and contracts of sale of real property to refer to the property without describing it in detail each time it is mentioned; for example, “the aforesaid premises.” AFORETHOUGHT In criminal law, intentional, deliberate, planned, or premeditated. MURDER in the first degree, for example, requires MALICE AFORETHOUGHT; that is, the murder must have been planned for a period of time, regardless how short, before it was committed. AFTER-ACQUIRED PROPERTY CLAUSE A p hrase i n a mortgage (an i nterest i n land t hat furnishes s ecurity for payment of a debt o r performance of an obligation) that provides that any holdings obtained by the borrower subsequent to the date of the loan and mortgage will automatically constitute additional security for the loan. AFTER-ACQUIRED TITLE A legal doctrine under which, if a gra ntor conveys what is mistakenly believed to be good title to land that he or she did not own, and the grantor later acquires that title, it vests automatically in the grantee. AFTER-BORN CHILD A child born after a will has been executed by either parent or after the time in which a class gift made according to a trust arrangement expires. The existence of an after-born child has significant legal ramifications upon gifts made under wills and trusts. Under the law of wills, the birth of an after-born child after the parent makes a will does not revoke it but has the effect of modifying its provisions. Generally, the after- born child must be given the share of the parent’s estate that the child would have been entitled to if the parent had died without leaving a will, according to the law of DESCENT AND DISTRIBUTION. The beneficiaries of the will must contribute a proportionate share of what they inherited to make up the after-born child’s share. Under the law of trusts, a gift to a class is one in which the creator of the trust, the SETTLOR, directs that the princ ipal of the trust should be distributed to a specifically designated group of persons, such as to grandchildren, who are al ive at a certain time, such as at the settlor’s death. Any child born after this time would not be entitled to a proportionate share of the trust An example of how an after-acquired property clause might be used ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING. Security Agreement with an After-Acquired Property Clause This Security Agreement is made on this________________________day of _____________________________________ , 20 _______ between _______________________________ , _________________________________ , ___________________________________ [name and address of the debtor] ("Debtor"), and _________________________________ , ___________________________________ , ____________________________________ [name and address of secured party] ("Secured Party"). 1. SECURITY INTEREST. Debtor grants to Secured Party a security interest in all inventory, equipment, appliances, furnishings, and fixtures placed upon the premises known as ______________________________ , located at __________________________________ , ______________________________________ (the "Premises") or used in connection therewith and in which Debtor now has or hereafter acquires any right and the proceeds therefrom. The security interest of Secured Party extends to all collateral of the kind which is the subject of this agreement which the debtor may acquire at any time during the continuation of this agreement. The Security Interest shall secure the payment and performance of Debtor's promissory note of even date herewith in the principal amount of ___________________ [amount of payment] Dollars and the payment and performance of all liabilities and obligations of Debtor to Secured Party of every kind and description, direct or indirect, absolute or contingent, due or to become due now existing or hereafter arising. [Portions omitted for purposes of illustration] GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 166 AFORESAID principal unless conceived before the settlor died. An after-born child born eleven months after the settlor’s death, therefore, would not share in the principal, since the class had closed nine month s after the settlor’s death. AGE DISCRIMINATION Prejudicial treatment or denial of rights based on age. As the baby boom generation, the largest demographic group in U.S. history, reached middle age and looked toward retirement, laws governing the treatment of older U.S. citizens took on greater importance than ever before. Between 1970 and 1991, the number of workers over the age of 40 in the U.S. workforce rose from 39,689,000 to 53,940,000. It is no surprise, then, that major developments, both legislative and judicial, occurred in the area of age discrimination in employment. Congress outlawed DISCRIMINATION by employers against employees or applicants over the age of 40, with the Age Discrimination in Employment Act of 1967 (ADEA) (29 U.S.C.A. § 621 et seq.). Amendments to the act in 1974, 1978, and 1986 (29 U.S.C.A. § 623 et seq.) raised and then eliminated the mandatory retirement age for most workers and extended the act’s coverage to most employers. The ADEA does permit employers to set maximum age limits for employees if the employer can show that age is a bona fide occupational qualification (BFOQ) and is reasonably necessary for the operation of the business. Although the ADEA did not originally apply to government employers, Congress ex- tended the act to cover federal, state, and local governments in 1974. However, it no longer applies to state governments. The EQUAL EMPLOYMENT OPPORTUNITY COMMIS- SION (EEOC) is charged with enforcing the ADEA. Complainants must first file a claim with the EEOC or their state ’s employment or HUMAN RIGHTS commission before pursuing a lawsuit. The EEOC attempts to resolve the dispute through voluntary compliance on the part of the employer, conciliation, or other persuasive measures. If the EEOC decides to bring an action against the employer, the employee’s right to sue is extinguished. However, the employee need not exhaust his or her admi nistrative remedies—that is, wait for a final determination from the EEOC—before filing suit. In fact, on February 27, 2008, the Supreme Court in Federal Express Corp. v. Holowecki, 552 U.S. ___, 128 S. Ct. 1147, addressed the issue of whether the intake questionnaire, or the specific complaint form that aggrieved employees are required to file with the EEOC prior to filing a lawsuit against their Employers may not require the retirement of a worker unless they can demonstrate that the employee’s age is relevant to the operation of the business. AP IMAGES GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION AGE DISCRIMINATION 167 . 2007. 84.3 White 67.4 9.6 13 .3 Black 3.6 Hispanic 11 .4 1. 8 Asian/Pacific Islander 6.8 1. 1 American Indian/Alaska Native 0.7 19 76 2006 GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 15 8 AFFIRM General. Adarand Constructors, Inc. v. Pena, 11 5 S. Ct. 2097, 13 2 L. Ed. 2d 15 8 (19 95). In Johnson v. Transportation Agency, 480 U.S. 616 , 10 7 S. Ct. 14 42, 94 L. Ed. 2d 615 (19 87), the Court ruled that a county. from No. 1 to No. 260,000,000, in terms of his or her qualification for any desirable career opportunity.” He and other GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION AFFIRMATIVE ACTION 16 1 Affirmation