Con Law--Moot Court II Essay (Affirmative Action & Gender)

Con Law--Moot Court II Essay (Affirmative Action &...

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Laura Johnson Professor Chinnery American Constitutional Law 16 March 2007 Moot Court Essay 2 With the inauguration of its new president, Patrick “Commandante” Chinnery, in the winter of 2007, UT-Lascassas began a mission to establish a university which contained a diverse student body and served the best interests of the larger community. Soon after taking office, Chinnery amended the university’s admissions policies with this mission in mind. His new admissions program called for the following: first, an affirmative action program to promote diversity; and second, the reservation of 75 seats for athletes who play the most popular sports, which happen to be men’s football and men’s basketball, to encourage a spirit of common fellowship in the larger community. When the admissions applications of Warren Churchill, a white male, and Jackie McCreedy, a white female athlete, were rejected, they filed suit against UT-Lascassas claiming that the university, through the use of its new admissions policies, unconstitutionally discriminated against each of them. The question raised by this case is as follows: Do the current admissions policies of UT-Lascassas violate the Equal Protection Clause of the 14 th Amendment? In reviewing the constitutionality of this case, the strict scrutiny standard should be applied to both the diversity-based affirmative action program and the athletic set- aside program. The affirmative action program is subject to strict scrutiny because of Justice Black’s statement in the opinion of the Court for Korematsu v. United States
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(1944) that “all legal restrictions which curtail the civil rights of a single racial group are immediately suspect… [and] courts must subject them to the most rigid scrutiny.” Justice Powell also called for this “most rigid scrutiny” in his opinion in Regents of the University of California v. Bakke (1978) by stating that “racial and ethnic distinctions of any sort are inherently suspect and thus call for the most exacting judicial examination.” With regards to the gender issues brought about by the athletic set-aside program, the strict scrutiny standard should be applied because in Frontiero v. Richardson (1973), Justice Brennan states that “classifications based upon sex, like classifications based upon race, alienage, or national origin, are inherently suspect, and therefore must be subjected to strict judicial scrutiny.” When examined under the scope of this high level of scrutiny, the affirmative action program can stand as being constitutional because a program in which race or
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Con Law--Moot Court II Essay (Affirmative Action &...

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