Category: Education

Bill 96: A Violation of English-speaking Rights in Québec

Sidney Singer

In Canada there are multiple pieces of legislation that protect the rights of citizens to live their lives in one of the two official languages, English or French. The earliest, the British North America Act in 1867, implemented French and English as official languages of the parliament, followed by the Official Languages Act in 1969, and the Canadian Charter of Rights and Freedoms. Section 23 of the Canadian Charter of Rights and Freedoms specifically pertains to education and holds that Canadian citizens have a right to be educated in either English or French. In June 2022, Bill 96 was passed in the Canadian Province of Québec. The bill states that its purpose is “to affirm that the only official language of Québec is French.” It also affirms that French is the common language of the Québec nation.” However, I argue that Bill 96 is unconstitutional under Section 23 of the Canadian Charter of Rights and Freedoms, due to enrollment caps placed on English language schools. 

The bill also targets Quebec’s English language educational system, placing caps on the amounts of students permitted in each of the “English-language institutions providing college instruction” at the Minister of Higher Education, Research, Science and Technology’s discretion. The Bill further states that the total number of English-language students cannot exceed 17.5% of the French-language student population, and that the proportion of English and French students must stay the same from year to year.

Immediately after the passage of Bill 96, the English Montreal School Board (EMSB) voted to challenge the bill, with spokesperson Joe Ortona for the EMSB saying that “I’m ready to stand up and fight as an English-language school board and an English-language institution and to stand up for these rights that the government has decided they can throw out the window.”

The EMSB challenge to Bill 96 specifically cited Section 23 of the Canadian Charter of Rights and Freedoms. Section 23 of the Canadian Charter is as follows:

  1. Citizens of Canada (a) whose first language learned and still understood is that of the English or French linguistic minority population of the province in which they reside, or (b) who have received their primary school instruction in Canada in English or French and reside in a province where the language in which they received that instruction is the language of the English or French linguistic minority population of the province, have the right to have their children receive primary and secondary school instruction in that language in that province. 

In other words, Section 23 of the Charter of Rights and Freedoms guarantees that if a parent is educating one child in their family in either English or French, they have the right to have all their children receive their instruction in that language. However, what happens if one child is enrolled in an English language school, but due to enrollment caps, their sibling is unable to enroll? Such a scenario would directly violate section 23 subsection 2 of the Charter, which states that “the right of citizens of Canada under subsections (1) and (2) to have their children receive primary and secondary school instruction in the language of the English or French linguistic minority population of a province.” 

 Association des Parents ayants droit de Yellowknife et al. v Attorney General of the Northwest Territories et al., a 2012 case in Canadian Supreme Court of the Northwest Territories, is particularly pertinent as it dealt with the number of students in Yellowknife that had the right to attend Francophone schools. The court looked at census data, determined that there were around 500 eligible students that could attend francophone schools, and concluded that “the capacity of the minority school had to be increased to take into account the number of students it may have to accommodate in the future. The capacity of the school had to be between that number and the existing demand.” 

This decision was decided under section 23 of the Charter, due to the fact that all children who had the right to minority-language education needed to be able to have a place in the French schools if they so wished. Yet the court’s ruling quite clearly contradicts the recent cap on English Language student enrollment in Quebec under Bill 96. If minority language schools must “take into account the number of students it may have to accommodate,” the action of capping enrollment for minority language institutions is directly contradictory.

The Case of Bill 96 is an interesting inversion of the usual fight for language rights within Canada, wherein French is most often the minority language. However, the reversal of the roles of English and French does not mean that they can be treated differently under the constitution, which aims to protect the rights of English and French speakers equally. Just as all children who have the right to be educated in French must be afforded the right to attend school, all children who have the right to an English language education must be treated the same. 

Directly looking at the rights entrenched in the Charter of Rights and Freedoms, it is evident that the proposed enrollment caps on English language institutions and instruction in Quebec is unconstitutional. If all citizens have the right to receive an education in their first language, the idea that one can cap the enrollment in certain language schools will force students to abandon their charter rights to receive an education. If there are more students who qualify for English education than there are spots for enrollment, the constitutional rights of these students to receive an English language education, if they so desire, are being violated. 

Affirmative Action’s Strict Scrutiny Revisited: Creating Meaningful Compelling Interests

David Chau

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2 Prin.L.J. 22

Introduction:

The current national fabric of the United States is a colorful one. However, to reach that level of inclusivity, it took mass grievances demanding change and slow government acquiescence, creating a more equal, equitable representation in government to “form a more perfect union.”[1] Some of these calls for reform moved their way up the judicial branch. And, 45 years ago, in Regents of the University of California v. Bakke, the Supreme Court attempted to answer the legal questions regarding race-conscious admissions policies in higher education. But the Court has inadequately decided Bakke, resulting in the presumptive downfall of affirmative action that we see when the Roberts Court announces its decisions in two cases it heard this term: SFFA v. Harvard and SFFA v. UNC.

Ever since Bakke, proponents of affirmative action have had to fight for its legitimacy with “one hand tied behind” their backs,[2] clinging onto an unworkable justification for its existence. Although the Court upheld some forms of affirmative action in Bakke, its justification for doing so effectively sentenced affirmative action to death. It reaffirmed this death sentence again in 2003 and will declare affirmative action effectively dead in June of 2023. A small change to include considering “past societal discrimination” as a justification for affirmative action back in Bakke would likely provide a more robust and effective framework for admissions policies that are in line with the requirements of the Equal Protection Clause.

Historical Background:

Race-conscious affirmative action belongs to the legacy of the Civil Rights Movement and the Civil Rights Act of 1964. In a speech at Howard University in 1965, President Lyndon B. Johnson said:[3]

“You do not take a person who, for years, has been hobbled by chains and liberate him, bring him up to the starting line of a race and then say, ‘you are free to compete with all the others,’ and still justly believe that you have been completely fair…Thus it is not enough just to open the gates of opportunity. All our citizens must have the ability to walk through those gates. We seek not just freedom but opportunity. We seek not just legal equity but human ability, not just equality as a right and a theory but equality as a fact and equality as a result.”

These political remarks reflected the attempts of education and employment institutions across the country to implement their own affirmative action policies.[4] However, the initial implementation of these policies also kickstarted flurries of opposition with legal strategies, such as claiming reverse discrimination, or most recently in SFFA, the victimization of a racial minority—Asians. As these claims rose to the Supreme Court, posing equal protection questions, the Court began to dismantle the policy that has helped undo decades of inequality in the United States.[5] Moreover, revisiting the diverse national fabric of America, no two lives are the same. Hence, as we discuss the issue of affirmative action and the general doctrines of antidiscrimination law, it is of the utmost importance that the conversation stays at the individual level, since it is easy to conflate an individual, who is part of a category—which may or may not be a defining part of their identity—to a generalization of a collective group. This form of conflation was and still is the misconception that frames the conversations in political discourse, where rhetorics of reverse discrimination and mass victimization are invoked.[6] Nonetheless, the true definition and constraints of policies surrounding the practice of race-conscious affirmative action dictate that any consideration of race—as with all factors of admissions—must be considered only on an individual level.[7]

First, through Bakke in 1978, a split Court (4–1–4) decided that all racial distinctions, even including the classification of the racial majority, are protected categories under the Constitution. Hence, it held race-conscious admissions policies to strict judicial scrutiny, where only Justice Powell took the deciding vote on outlining the Court’s affirmative action that persevered until today. Since Bakke, there has been only one justification for affirmative action that rises to a compelling state interest: the attainment of a “diverse student body” and the academic benefits that flow from such a population.[8] Bakke set the foundation for an unworkable narrow tailoring of the policy, effectively banning all quantitative measures that can be employed by universities to reach their goals of diversity.[9] Later on, via Grutter in 2003, the Court continued to uphold Bakke’s restriction while adding a “sunset clause” of 25 years, declaring affirmative action’s death in 2028. However, six years before society reaches that point in time, the Court once again decided to jeopardize its fate.

Court cases involving affirmative action have long established the jurisprudence of using strict scrutiny because it is an issue related to a protected category of race. In Bakke, UC Davis, the Petitioner, argued that because Bakke was a white man, he is part of the white racial majority, and the case did not merit strict scrutiny under the definition of “discrete and insular” minorities outlined in Carolene Products Footnote 4.[10] However, the Court went further to make a jurisprudential claim that as long as a policy involves race, it must be subject to the most “rigid scrutiny.”[11] Interestingly, to justify this point, Powell quoted Hirabayashi and Korematsu, which were two of the worst and most infamous precedents that subjected Japanese Americans to second class citizenship and ultimately interment.[12] Regardless, with strict scrutiny applied for affirmative action, Powell opened up the conversation to the larger, more diverse national fabric that is inclusive of all races and ethnicities, which was prevalent back in the 1970s and is forever more so in the present: “The Fourteenth Amendment is not directed solely against discrimination due to a ‘two-class theory’—that is, based upon differences between ‘white’ and Negro.”[13] With this conception of strict scrutiny over a suspect category of race, Powell removed the binary narrative of a world of white and Black. The use of strict scrutiny has been important to protect the interest of everyone. Nonetheless, this Court’s definition of affirmative action that satisfied its view of strict scrutiny has left the policy without any sustainable means to survive.

Re-examining the current compelling interest:

Contrary to many beliefs about affirmative action being one of the tools to remedy the country’s long history of inequality and injustice, the Court has never held remedying past societal discrimination as a constitutional justification.[14] The only acceptable reasoning for a compelling state interest that the Court upheld ever since Bakke is that it helps foster “the attainment of a diverse student body.”[15] The justices have not changed their holding since. Justice Powell, the author of Bakke, reasoned that creating a diverse educational environment at the university level will allow students to gain exposure to a wide range of different views and ideas. Acting as platforms for scholarly discussions to thrive, universities require voices from all walks of life to be represented because these institutions are the leaders in fostering meaningful changes in society. For one, they are pipelines of the nation’s decision-makers—even more so at the top universities, which employ more of these policies compared to community colleges. If these graduates were to be making decisions, then they would be better off being conscious of the diverse national fabric of modern America.[16] As long as the current government is unrepresentative of the American population, affirmative action—in universities and the workplace alike—may be employed to create a strong foundation for more representation in leadership.[17] And, this question may as well apply to the Court’s current composition.

Moreover, one must always note that the idea of using race as a factor to admit someone does not negate any other factors that bolster the consideration of diversity, such as “academic interest, belief systems, political views, geographic origins, family circumstances, and racial identities.”[18] In 2021, two writers for the Princeton Legal Journal contended that race-conscious admissions mean that “you opt for a scheme that deliberately favors applicants from some minority groups by applying different standards of admissions to students on the basis of their racial identities.”[19]

This form of characterization of race-conscious admissions policies is the manifestation of the misconceptions of the system that opponents to affirmative action have leveraged for decades (from Grutter and Gratz in 2003 to Fisher in 2016): there is a separate track of admissions for certain racial groups while other groups are subject to more stringent academic standards when considering them for admission, be it Asian Americans or white applicants. However, this is not the sort of system the Court approved of in Bakke in 1978. The Court has ordered multiple times that any consideration of race in admissions must be done on an individual level that is holistic. There is not only the consideration of race but also other factors such as geography, religious beliefs, academic performance, family circumstances, etc. Ever since this 1978 decision was handed down, all forms of separate admissions tracks—especially those with special, lower standards for minority groups—have been outlawed and found unconstitutional.[20] This means that each applicant is individually held to certain standards that are based on the context of the person’s profile. Every individual is unique and different in their sense, thereby demanding an accordingly individualized consideration for admissions.

Nonetheless, there is still merit to the authors’ argument critiquing the Court’s decision in 1978 about the sole compelling state interest. The authors, quoting Justice Clarence Thomas, argued that current race-conscious admissions policies are singling out race as a special category of admissions to supposedly attain the educational benefits that flow from certain “‘classroom aesthetics.’”[21] While that is difficult to prove quantitatively, if we were to take it as true, we could see how Thomas’s critique details how the sole compelling interest creates flaws within the admissions systems. The current idea that the sole purpose of implementing race-conscious admissions is to attain diversity among the student body only considers the interest of the university and the enrolled students. The legal position that the Court adopted in Bakke did not allow for the interest of the applicants to be considered. In fact, the current compelling interest allows universities to have expansive discretion to practice either “egalitarian” or “exploitative” affirmative action to attain diversity without any mechanism to prevent performative affirmative action.[22] Because of the Court’s refusal to consider remedying past discrimination a compelling interest, the benefits of race-based affirmative action only impact students who are admitted rather than truly providing equitable opportunities to applicants with less access to high-quality education.[23] This is, though, a matter of policy. Simply put, the current constraint of only operating within the silo of “attaining diversity” lacks the ability to differentiate whether universities are carrying out race-conscious admissions as a way to offer true diversity of thought or as a way to create “classroom aesthetics.” Had the Court included the consideration “past societal discrimination” as a compelling interest for affirmative action, there might be a mechanism to protect individuals from the possibilities of such exploitative admissions schemes, which will be proved in the next section. Throwing affirmative action out the window simply is not the answer.

Past Societal Discrimination: A Necessary, Compelling State Interest

Understanding the systemic and structural inequalities of American history, especially U.S. legal history, a consideration of past societal discrimination as a new compelling interest might be necessary to carry out affirmative action equitably without allowing for negative action and exploitative practices of these policies to affect other applicants. This paper only argues for the consideration of past societal discrimination, not remedying these instances of discrimination like the original case in Bakke discussed. Universities are foundations for societal change, not direct means for change. “Remedying” past societal discrimination insinuates that these academic institutions are agents that actively work to mend the evils of society. But, they do not have that responsibility—namely to actively seek disadvantaged groups for them to qualify for race-conscious admissions programs.[24] Universities only need to take a passive stance in considering one’s background of past societal discrimination. That aside, affirmative action is not a panacea to solve all of these inequalities; it has to work in conjunction with comprehensive legislation in other facets. Affirmative action alone does no direct good. Before continuing on to forming constructive arguments, let us examine Powell’s reasoning for not allowing the consideration of past societal discrimination as a compelling state interest.

In Bakke, Powell claims that the idea of societal discrimination is too nebulous and unstable to have a concrete, distinct classification for groups of people. Even the white racial majority can be broken down into smaller affiliated groups that might have been victims of discrimination in the past:[25]

“[T]he white ‘majority’ itself is composed of various minority groups, most of which can lay claim to a history of prior discrimination at the hands of the State and private individuals. Not all of these groups can receive preferential treatment and corresponding judicial tolerance of distinctions drawn in terms of race and nationality, for then the only ‘majority’ left would be a new minority of white Anglo-Saxon Protestants. There is no principled basis for deciding which groups would merit ‘heightened judicial solicitude’ and which would not. Courts would be asked to evaluate the extent of the prejudice and consequent harm suffered by various minority groups. Those whose societal injury is thought to exceed some arbitrary level of tolerability then would be entitled to preferential classifications at the expense of individuals belonging to other groups.”

Powell imagined a world where, once we started considering past discrimination, everyone would start claiming that they were structurally discriminated against—no matter how far back that discrimination occurred. To Powell, this would open the floodgates to a slew of litigation seeking remedies from the Court, and he did not think it proper for courts to decide which groups have suffered discrimination worthy of remedying. However, if affirmative action policies can employ both interests simultaneously—considering past societal discrimination and attaining a diverse student body—universities would be able to set limitations to prevent random claims of past discrimination writ large. There is no empirical evidence to back up his fear, but let us use his example to test the consideration of past societal discrimination as it works in tandem with the school’s interest to attain a diverse body of students.

He mentioned that if the “white majority” is divided into smaller groups, everyone would be able to claim to be victims of societal discrimination—except for white Aglo-Saxon Protestants. This is true, especially when we examine the political situation of national affiliation during the early days of white settlers in the “New World.” There were strong divisions among Irish, French, Dutch, and English groups of immigrants in these new lands.

With that said, would the descendants of these groups be able to make a claim of past societal discrimination to qualify under affirmative action? Maybe. However, if the consideration of “past societal discrimination” works in tandem with the universities’ interests in attaining diverse bodies of students, the answer would be: not so fast. The schools’ interests in gaining diversity among the student body would be the filter to sift out who can bring a different point of view to the table. For instance, an applicant of Irish descendent—who is white—can still make a claim to qualify under race-conscious admissions policies if their circumstances inform the admissions officer that that their family is structurally disadvantaged by past societal discrimination and that they would be able to bring their own unique point of view to the civil discourse on campus because of this part of their identity. With this framework, affirmative action will not be just for racial minorities, but rather for students who truly need to have representation on campus. And, although these groups usually tend to be racial minorities, this method will not preclude groups of racial majorities that are marginalized. This issue is particularly important when we consider the influx of international students. According to one New York Times article, which examined whom affirmative action truly benefited among the Black racial minority, the majority of Black students at Harvard and Cornell Universities are international or first-generation immigrants, who usually arrive in the States as highly skilled workers.[26] This may as well be evidence for “exploitative” affirmative action policies, since they benefited mostly Black students who are not structurally disadvantaged compared to the multi-generation African Americans who survived slavery, Jim Crow, and other forms of societal discrimination. If these universities are bound to consider if these applicants have been affected by past societal discrimination, the composition of students who benefit from these race-conscious policies might have been different. Once again, universities are not agents to remedy past societal discrimination. They are not agents for change. They do not need to go on a hunt for students who are part of a group that suffered from past societal discrimination. Their only duty is to consider this factor among other considerations for admissions.

Furthermore, Powell argued in Bakke that if the Court were to take into account remedying “past societal discrimination” as a compelling state interest, it would endorse a “constitutional principle” that varies “with the ebb and flow of political forces,” which would “exacerbate racial and ethnic antagonisms rather than alleviate them.”[27] Powell was imagining a world of political chaos that would increase racial animus and destabilize the constitutional principle. That assumption is quite true with the current politicization of racial issues and affirmative action. However, once again, if these two government interests can work in conjunction with each other, i.e., considerations of past societal discrimination and attaining a diverse body of students, these two justifications for affirmative action would maintain the stability of the policy. The universities’ interest to attain diverse and robust civil discourse among the student population would remain constant. If one group claims the political majority over the other, universities would still want to have fair representation of both groups in the unchanging interest of diverse discourse on campus.

Once the factor of disadvantaged groups is considered, universities can now admit a more representative student population that speaks to the colorful and vibrant national fabric of America. No longer can affirmative action be carried out exploitatively to attain “classroom aesthetics” under these new constraints. Furthermore, Powell’s concern that this government interest would lead to further racial antagonism should not lie with the existence of affirmative action. This race-conscious policy is not a panacea to all societal inequities. Addressing the issue of racism and racial animus must be done holistically through careful legislating. Hence, instead of striking down a workable standard for this policy, Powell could have noted the need for Congress to consider these more nuanced questions to assess societal issues related to race.

Let us return to the current cases in front of the Supreme Court, SFFA v. Harvard and SFFA v. UNC, which claim Asian Americans are victims of affirmative action.[28] Unlike what SFFA contends, there propositions are sample cases of generalizing the diversity of different ethnic and racial groups under an umbrella term of “Asian Americans.” There are groups within the Asian community that earn and are more educated than the white racial majority, while there are specific ethnicities that constantly live below the poverty line and struggle to have their youth graduate high school.[29] Using the new addition to the compelling state interest would allow universities to look into the larger picture and parse the massive generalization that America has done to the Asian American community. Even the idea of grouping everyone under the term Asian may be problematic: for one it does not usually represent all populations in Asia, and two, it is Eurocentric and is a product of imperialism.[30]

Therefore, unlike what Powell imagined, adding this new compelling state interest would not create a chaotic situation where everyone would grab onto a claim to qualify under affirmative action. But in fact, it would benefit those who need benefiting, especially giving the platform to uplift those who need the space to represent not only themselves but also their identities, so that the decisions and the thoughts that undergird these processes are representative of all walks of life.

Concluding thoughts:

Affirmative action was made complicated, convoluted, and politicized through decades of racial animus. Bakke never gave the policy the ability to defend its legitimacy. Now, with affirmative action’s fate set to be decided in front of the Court, we might as well consider if it had lived a different life—the life that would open possibilities to a more equitable and representative future. With the meaningful compelling interests, the addition of the consideration of past societal discrimination fills in the gaps that the current system has. Nonetheless, the policy’s defenders have fought hard for its existence through the last 50 years. And, with its presumed death, new opportunities await for other means of change to form equity and equality.

[1] U.S. Constitution, preamble.

[2] Emily Bazelon, “Why Is Affirmative Action in Peril? One Man’s Decision,” The New York Times, last modified March 4, 2023, https://www.nytimes.com/2023/02/15/magazine/affirmative-action-supreme-court.html.

[3] Lyndon B. Johnson, “Commencement Address at Howard University: “To Fulfill These Rights.”,” The American Presidency Project, last modified June 4, 1965, https://www.presidency.ucsb.edu/documents/commencement-address-howard-university-fulfill-these-rights.

[4] Barbara A. Perry, The Michigan Affirmative Action Cases (Lawrence, Kansas: University Press of Kansas, 2007), 14-15.

[5] This paper believes in the benefit of race-conscious admissions/hiring policies. Although it will not go into proving how affirmative action is beneficial, it believes that with the right combination of policies alongside affirmative action, the government can effectively reduce the level of income disparity among racial lines across locales and states. Affirmative Action on its own will not be able to tackle the multilayered, structural inequality among racial and class lines.

[6] Garriy Shteynberg, Lisa M. Leslie, Andrew P. Knight, and David M. Mayer, “But Affirmative Action hurts Us! Race-related beliefs shape perceptions of White disadvantage and policy unfairness,” Organizational Behavior and Human Decision Processes 115, no. 1 (May 2011), 1-12. doi:10.1016/j.obhdp.2010.11.011.

[7] Grutter v. Bollinger, 539 US 306 (2003).

[8] Regents of the University of California v. Bakke, 438 US 265 (1978).

[9] Bakke and later Grutter banned racial quotas and any forms of numerical bonus points based on someone’s race. This created a system that is forced to use qualitative measures to prove their goal of diversity, which by all means demands a quantitative answer of numbers and percentages.

[10] Bakke. United States v. Carolene Products Co., 304 U.S. 144 (1938).

[11] Bakke.

[12] Ibid.

[13] Ibid.

[14] Cynthia Chiu, “Justice or Just Us?: SFFA v. Harvard and Asian Americans in Affirmative Action,” Southern California Law Review 92 (2019): 447.

[15] Bakke.

[16] Grutter.

[17] This is not to say that affirmative action is the ultimate answer to create a more representative government. It must work in tandem with other policy that would allow for an informed, transparent, and fair democracy to thrive. Issues, such as gerrymandering, misinformation, disinformation, etc., are also barriers to reaching the goal of a representative government.

[18] Student for Fair Admissions v. President and Fellows of Havard College, Merit Brief from the Respondent, 3.

[19] Myles McKnight and Benjamin Edelson, “Affirmative Action Admissions Regimes Are Unconstitutional: Strict Scrutiny Should Mean Something,” Princeton Legal Journal, last modified May 5, 2021, https://legaljournal.princeton.edu/affirmative-action-admissions-regimes-are-unconstitutional-strict-scrutiny-should-mean-something/.

[20] Bakke outlawed the quota system, where racial minorities compete for 16% of the slots and the racial majority compete for the other 84%. And, Grutter outlawed the points system, where racial minorities were awarded 20 points extra for their race.

[21] Myles McKnight and Benjamin Edelson, “Affirmative Action Admissions Regimes Are Unconstitutional: Strict Scrutiny Should Mean Something.”

[22]Cynthia Chiu, “Justice or Just Us?” In this article, an “egalitarian” system of affirmative action will help the school body attain a more representative population, where educational benefits are attained from the diverse pool of opinions and life experiences. On the other hand, an “exploitative” scheme of affirmative action is the scheme that the PLJ article and Justice Clarence Thomas claimed to be. That schools will just consider race for its end goal of creating “classroom aesthetics.” An egalitarian system centers itself in the means of achieving diversity while an exploitative system focuses on the ends of achieving diversity regardless of whatever means the institution takes. Institutions, even elite ones, may be both exploitative and egalitarian at the same time. These two concepts are not mutually exclusive.

[23] Ibid, 450.

[24] While actively seeking candidates that can qualify for affirmative action policies are not discussed in this paper, it may be a potential for a problematic characterization of ethnic and racial groups in society.

[25] Bakke.

[26] Jay C. Kang, “Where Does Affirmative Action Leave Asian-Americans?,” The New York Times, last modified July 29, 2021, https://www.nytimes.com/2019/08/28/magazine/where-does-affirmative-action-leave-asian-americans.html.

[27] Bakke.

[28] Student for Fair Admissions v. President and Fellows of Harvard College. Student for Fair Admissions v. University of North Carolina.

[29]  Pew Research Center, “Key Facts About Asian Americans, a Diverse and Growing Population,” Pew Research Center, last modified October 10, 2022, https://www.pewresearch.org/short-reads/2021/04/29/key-facts-about-asian-americans/.

[30] Erika Lee, The Making of Asian America: A History (New York: Simon & Schuster, 2015).

Temple University vs. Temple Graduate Student Union: A Violation of State and Federal Labor Statutes

Sidney Singer

“As a result of your participation in the [Temple University Graduate Student Association] strike, your tuition remission has been removed for the spring semester. You now owe the full balance listed in TUpay, which is due by Thursday, March 9,”  read an email sent by Temple University to graduate students participating in the Temple University Graduate Student Association (TUGSA) strike. Temple graduate students – many of whom make less than the estimated cost of living for Philadelphia, where Temple University is located – were on the third week of their strike after failing to reach a compromise with Temple to increase pay and benefits when this email reached their inboxes.

Not only has Temple University revoked tuition remission for students on strike, but Temple has also canceled their University-provided health insurance, which many students discovered after trying to purchase prescriptions or go to doctor’s appointments. Temple said that the termination of health coverage was due to the students’ “decision to strike.”  On March 7th, Temple University reinstated striking students’ health insurance, noting that this decision was made “because of the good faith effort shown by TUGSA.” After 42 days on strike, and two days after the reinstatement of student health insurance, the TUGSA accepted a deal that increased their stipend payments, in the face of what they called “unprecedented retaliation and intimidation, not to mention the cowardice and cruelty of [Temple University] admin.”

I argue that based on case precedent, Temple University violated the Pennsylvania Labor Relations Act (PLRA), and by extension the Pennsylvania Employee Relations Act (PERA), as well as the National Labor Relations Act (NLRA), by removing tuition remission and health insurance for striking graduate students.  In this article, I will explore not only the implications of the University being held accountable under the NLRB, but also will look at the PLRA and PERA, which the University incontestably must abide by. I will explain how Temple’s decision to remove students’ health insurance was a violation of each of these statutes as per Section 8(d) of the NLRB and the PERA.

The Pennsylvania Labor Relations Act, first introduced in 1935, guarantees employees the right to “to organize and bargain collectively.” Section 6 of the act states that “it shall be unfair practice for an employer to… intimidate, restrain, or coerce any employee for the purpose and with the intent of compelling such employee to join or to refrain from joining any labor organization, or for the purpose or with the intent of influencing or affecting his selection of representatives for the purposes of collective bargaining.”

However, according to a spokesperson for Temple University, under Pennsylvania law, “TUGSA members who have chosen not to work and are on strike are no longer entitled to their compensation and work-related benefits.” Yet, if these students are unable to access life-altering health care, such as access to necessary medications or doctor’s appointments, due to their membership and cooperation with the TUGSA, does this not constitute coercion with the intent to deter students from joining a union? If students are forced to make a choice between life-saving healthcare, and joining the TUGSA, then they are being forced to put their union membership at the expense of their physical health, thus coercing them into making a choice between health and collective bargaining.

However,  In re Appeal of Cumberland Valley Sch. Dist. from Final Ord. of Pa. Lab. Rels. Bd. in Case No. Pera-M-6966-C, the Supreme Court of Pennsylvania ruled that the Cumberland Valley School District was exercising unfair labor practices, in violation of sections 1201(a)(1),(3) and (5) of the PLRA. These sections prohibit public employers from: “Interfering, restraining or coercing employees in the exercise of the rights guaranteed in Article IV of this Act”; “Discriminating in regard to hiring or tenure of employment, or any term or condition of employment to encourage or discourage membership in any employee organization.”

In the aforementioned case, Cumberland Valley School District argued that the “line of cases defining the good faith obligation of the employer and employee which to board considered under the NLRA is inapplicable because the NLRA concerns private employment while Act 195 (also referred to as the PLRA) concerns public employment.” However, the court ruled that the case did not present a situation “where there exists a meaningful difference in policy between the NLRA and Act 195.” This case set the precedent in Pennsylvania that if there are no discernable differences between the NLRA and relevant Pennsylvania state statutes, the NLRA can be used as precedent.

In fact, if one were to look at the language of the NLRA, in comparison to the PLRA, Section 7 states “Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection” while section 5 of the PLRA reads nearly exactly verbatim, “Employees shall have the right to self-organization, to form, join or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection.”

The two excerpts are very similar, although  there is a minor difference in wording. Overall, however, both Acts seem to convey the same basic message, which is that employees have the right to join unions and engage in collective bargaining and other activities that support their collective interests.

Thus, with the precedent set that any cases where there is no significant difference between the meaning of the PLRA and the NLRA, the NLRA can be used as a baseline for decisions, one can look at national cases which deal with similar issues as faced by the TUGSA.

Similar cases on a national level, and were dealt with through the NLRB, include Intermountain Rural Electric Association v. National Labor Relations Board.

In Intermountain Rural v. NLRB, the court held that Intermountain Rural violated section 8(a)(3) of the NLRB, which states that it is an unfair labor practice for an employer to “interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 157,” Additionally, the Board found that this pattern of unlawful unilateral actions by IREA had a fundamental economic impact on the employees which would likely place the Union at a bargaining disadvantage in terms of maintaining the support of the employees and undercutting the Union’s authority at the bargaining table.

In the case of TUGSA, the removal of tuition remission and revocation of health insurance would surely have a “fundamental economic impact on the employees,” and would also violate Section 1201(a)(3) of the PLRA, which is taken essentially verbatim from the NLRA: “Discriminating in regard to hiring or tenure of employment, or any term or condition of employment to encourage or discourage membership in any employee organization.”  In the end, Intermountain Rural was required to “make whole employees sustained from this premium deductions, plus pay.”

When looking at the events that unfolded at Temple University, one can see clear parallels between the national example of  Intermountain Rural Elec. Ass’n v. N.L.R.B, and the Pennsylvania-specific example of appeal of Cumberland Valley Sch. Dist. Although the current situation at Temple has currently been resolved, I hold that based on case precedent, Temple University was in violation of the PLRA, as well as the NLRA, by removing tuition remission and health insurance for striking graduate students. It is very clearly a violation of Section 1201(a)(3) of the PLRA, and could also be considered in violation of Section 1009 (iii) of the PERA, which reads that it shall be an unfair labour practice for an employer “to intimidate, restrain, or coerce any employer by threats of force or violence or harm to the person of said employer or the members of his family, with the intent of compelling the employer to accede demands, conditions, and terms of employment including the demand for collective bargaining.” Temple’s removal of potentially life-saving health insurance can put those participating in a strike, or their direct family also covered by their insurance, directly in harm’s way. It is thus illegally coercive.

The Implications of New Title IX Regulations for Institutions of Higher Education

Anna Shin ’24

The establishment of Title IX, which prohibits sex-based discrimination in schools that receive federal funding, has protected students for nearly five decades by holding educational institutions accountable for cases of sexual discrimination. Notably, Title IX has played a significant role in equity in athletics, sexual harassment and violence, and protections for transgender students. 

But while this law’s foundation was built on sex equality, the specific nuances of Title IX policies have varied among the presidential administrations, most recently the Trump administration. On May 14, 2020, the ACLU and law firm Stroock & Stroock & Lavan LLP filed a lawsuit against Former Secretary of Education Betsy DeVos on behalf of four activist groups: Know Your IX, the Council of Parent Attorneys and Advocates, Girls for Gender Equity, and Stop Sexual Assault in Schools (Know Your IX v. DeVos). The lawsuit was in response to new revisions released on May 6th to existing Title IX policies (otherwise known as the “Final Rule”) for sexual harassment on college campuses set forth by the DoE. The ACLU and Stroock & Stroock & Lavan LLP have argued that colleges and universities conduct sexual misconduct cases from a higher standard than reports of discrimination based on race, national origin, disability, etc. Ria Tabacco Mar, director of the ACLU’s Women’s Rights Project, called the new rule a “double standard that is devastating for survivors of sexual harassment and assault, who are overwhelmingly women and girls.” But Secretary DeVos has stated that the new regulations will secure due process rights for both the accused and the accuser, claiming that the 2020 revisions will allow Title IX officials at colleges and universities to use either a preponderance of of the evidence or a “clear and convincing standard” to prove sexual harassment claims, thereby setting a higher burden of proof. This contrasts from the policy of the Obama administration (2011), which used a “preponderance of evidence” to determine guilt in sexual misconduct claims. This consequently led to many college males filing civil lawsuits based on the claim that they were being unjustly accused of sexual harassment. 

There are several issues the ACLU claims violates the due process of sexual violence victims. Firstly, they claim that the Final Rule redefines “sexual harassment” into three distinct traits: to be “so severe, pervasive, and objectively offensive” that it denies the person equal access to educational opportunities. This arguably narrows the scope for sexual misconduct claims, because the complaint must meet all three conditions for sexual harassment to be even be applicable. The previous definition used “or” in place of “and.” Secondly, any allegations or reports of sexual misconduct can be tossed and not investigated if not reported to the “right” person, or the individual formally in charge of all Title IX-related issues. Thirdly, the alleged sexual misconduct “must have taken place during a school-sanctioned activity, building, or event in which the institution has ‘substantial control.’” This disregards locations such as off-campus apartments, study abroad programs, and field trips, all of which should still fall under the school’s jurisdiction. Fourthly, it installs a “quasi-judicial system” that allows the cross-examination of both parties, which can further retraumatize victims and discourage them from coming forward about the misconduct. Finally, the current COVID-19 pandemic has heavily impacted universities’ budgets and systems, making it difficult for them to adhere to the DoE’s August deadline to implement these revisions. 

On October 20, 2020, U.S. District Court Judge Richard Bennett dismissed the case on the basis that Know Your IX was unable to prove that the Final Rule was directly reducing reports of sexual misconduct, and that it was creating more work for the organization. Other reasons discussed how the claim was arbitrary and “speculative.” Similar cases such as Women’s Student Union v. U.S. Department of Education, which made a congruent argument to the Know Your IX case except for high school students, are still ongoing. So far, none of the lawsuits filed against the Final Rule have been successful. So what does this entail for the future of the Final Rule in universities? The answer is still quite unclear, largely due to the fact that it is relatively new. Most colleges have yet to fully recover from the impacts of the COVID-19 pandemic, both financially and systematically, making it difficult to assess the true consequences of the rule. But Know Your IX and the ACLU have a promising argument — by creating blockades in sexual misconduct reporting and scope, especially during a time where almost everything was conducted within a virtual space, the Final Rule could not have come at a worse time for sexual misconduct claims to go unnoticed or ignored. Universities must continue to stay vigilant on how the implementation of the Final Rule is impacting their prosecution of sexual misconduct cases. Know Your IX v. DeVos, while in itself may not have been successful, is the necessary, groundbreaking case for future lawsuits that will continue to challenge the due process of the Final Rule.

Affirmative Action Admissions Regimes are Unconstitutional: Strict Scrutiny Should Mean Something

by Myles McKnight and Benjamin Edelson

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1 Prin.L.J.F. 8

Harvard’s affirmative action saga continues, or so we hope. After losses in the Federal District Court and the First Circuit Court of Appeals, the non-profit group seeking to do away with Harvard’s race-obsessed admissions regime has filed a Petition for Writ of Certiorari in our Nation’s highest tribunal. Students for Fair Admissions petitions the Court to consider overruling Grutter v. Bollinger, the narrow 2003 decision which held that the University of Michigan Law School’s race-conscious admissions program was constitutional because it satisfied strict scrutiny. Grutter’s loose reasoning leads us to think that the Court should overrule, so we’ll canvass just one reason for believing so here.

Whatever you make of the merits of Harvard’s affirmative action program, there are constitutional questions that lurk beneath the operation of any state-sponsored policy which prescribes differential treatment on the basis of race. No one denies this. Policy is one thing, constitutionality another. And when government policy (or the policy of institutions that receive government funding, like Harvard) makes racial classifications, reviewing courts must apply the test of strict scrutiny to determine whether or not those policies meet constitutional muster.1 For the unfamiliar: A race-conscious policy satisfies strict scrutiny if it 1) furthers a compelling (i.e. necessary) state interest, and 2) is “narrowly tailored” such that the policy minimizes, to the extent possible, differential treatment on the basis of race. If a policy discriminates on the basis of race only to the degree necessary to meet a compelling interest, it stands the test of strict scrutiny. 

Harvard argues that its policy meets this standard. We think that’s wrong. In fact, we don’t think an affirmative action regime like Harvard’s can ever satisfy strict scrutiny for reasons we’ll present below. But first, some preliminaries. 

The compelling interest claimed by the law school in Grutter was the procurement of the educational benefits that stem from having adequately diverse classrooms (what Justice Thomas calls “classroom aesthetics”).2 In fact, of the interests historically offered as justifications for affirmative action admissions practices, the Court has held that this is the only one that can be compelling.3 Before turning to whether or not this interest actually is compelling, we should point out that there is serious reason to doubt that this interest is truly the one that animates affirmative action policies like Harvard’s. 

Let’s grant, for a moment, that the end to which the policy is tailored is the procurement of the educational benefits that stem from classroom diversity. (The alleged compelling interest is not racial diversity qua racial diversity, but rather the educational benefits that stem from that diversity). 

Why limit the diversity to racial diversity? If the interest in the educational benefits that stem from racial diversity is indeed compelling, presumably there are other forms of diversity that would produce similarly significant, and similarly valuable, educational benefits. And those would be compelling too, right?4 

We can, in fact, think of other diversity domains wherein composition shifts would shock the academic status quo at elite universities just as much as or even more than adjustments in racial composition, thereby providing educational benefits at least as tangible and significant. Here are a few: political, ideological, and religious diversity among professors and students. Nevertheless, it is no secret that evangelical Christians and conservatives go dramatically underrepresented at institutions like Harvard or, say, Princeton. Can it really be that the educational benefits that stem from racial diversity are compelling interests while the educational benefits that stem from political, ideological, and religious diversity are not? Indeed, in the context of academe, where the cause of truth-seeking through academic discourse is advanced, one would think that the most prized form of diversity would be ideological. There can be little doubt that healthy ideological diversity would have at least as tangible an impact on the ability of students to navigate an ideologically, racially, and religiously diverse world as racial diversity would.

All of this should give us real pause before buying into the notion that the educational benefits that stem from racial diversity are the real interests at play. To us, it seems more plausible that the interest is something akin to the following: the rectification of societal ills and tragedies of minority underrepresentation. We think that this is a laudable interest, but it is not the one once alleged by the University of Michigan Law School or the one alleged by Harvard today. Moreover, the fulfillment of this specific interest by affirmative action was explicitly thrown away by Justice Powell in Bakke.

If you disagree with us so far, you might be tempted to respond: “Ah, well, conservatives and evangelicals are not historically marginalized groups. It’s wrong to analogize intellectual and religious diversity to racial diversity in this way!” Well, you’ve proved our point: Your interest lies in the rectification of historic societal ills.  

Let’s leave this aside. As a matter of fact, we do have reason to conclude that the asserted interest of procuring educational benefits is not the one that the Court should evaluate here. This is because the phrase “educational benefits that flow from racial diversity” is actually a gross misstatement of the more precise interest motivating Harvard’s scheme. We construe it as follows: the procurement of the educational benefits that stem from racial diversity, consistent with the maintenance of prestige and the general standards of the institution.

In our view, that second clause (“…prestige and general standards of the institution”) is a necessary component of the true interest to be weighed. Before explaining why this is the case, we should first take care to note that the maintenance of institutional prestige couldn’t possibly be a compelling interest. The compelling interest doctrine, as applied to race-conscious policies, provides the courts with a mechanism to smoke out illegitimate racial differentiation in all but situations of total necessity; “compelling” does not mean “preferable” or “laudable.” As historically applied to race-conscious policies, strict scrutiny has rejected interests even as important as the “best interests” of children. Race-conscious policies have otherwise typically stood only when they serve interests of such immense necessity as national security, the functionality of government, and safety from violence.5 In any case, should you prefer a looser conception of “compelling interest” than we do, it’s still immensely difficult to see how the maintenance of institutional prestige could ever rise to the qualification of compulsory. To quote Justice Scalia: “If that is a compelling state interest, everything is.”

So, if we’re correct in construing the relevant interest as we do, an affirmative action scheme like Harvard’s cannot pass the test of strict scrutiny. And if that is the case, it is unconstitutional. So, why are we correct?

Suppose you were devising an admissions scheme designed to secure the educational benefits that stem from classroom diversity. You’re not interested in prestige or maintaining the “high standards” for admission that make your university so elite – you know that those interests couldn’t be compelling. So, how do you do it? Your policy will need to be narrowly tailored, meaning it will have to be as race-neutral as possible while still increasing the diversity of your classrooms. If your interest lies only in the educational benefits that flow from increased racial diversity, perhaps you’ll come up with a lottery system so that your admitted class will be more reflective of a diverse applicant pool. Or, maybe you’ll adopt an approach to evaluating applications that gives less weight across the board to factors that, on average, tend to cut against the admissions chances of disadvantaged minority students (e.g. SAT scores). This would substantially reduce the disadvantage faced by applicants from historically marginalized communities. Because reduced consideration of such factors would apply to all applicants, you might not have to consider racial background at all.

But instead, you opt for a scheme that deliberately favors applicants from some minority groups by applying different standards of admission to students on the basis of their racial identities.6 Anyone can see that that scheme is not narrowly tailored to the interest in the way that the aforementioned alternatives might be; there are more race-neutral ways to attain sufficient classroom diversity than this scheme. Indeed, such a race-conscious admissions scheme can only be narrowly tailored if the interest itself is adjusted to accommodate the claim of narrow tailoring. Thus, an affirmative action admissions regime like Harvard’s, which applies different standards to different races in order to produce classroom diversity without sacrificing any degree of prestige, is only narrowly tailored in the context of an interest which includes the maintenance of the prestige secured by exclusive admission standards. And the interest in prestige and exclusivity, as we have suggested, cannot be compelling.

Importantly, we haven’t passed judgment on the policy merits of affirmative action. We believe that the rectification of societal ills and tragedies of minority underrepresentation are important and laudable interests. They are, moreover, perfectly constitutional interests. However, this does not mean that the Constitution gives wide latitude to policymakers who wish to realize these aspirations by devising policies that prescribe differential treatment between races. Rather, our Nation’s reckoning with its painful history of racial discrimination has led to the application of a rigorous legal safeguard designed to smoke out all but the most indispensable considerations of race. That safeguard is strict scrutiny. For a policy that discriminates between individuals on the basis of race to survive a constitutional challenge, it must do battle with strict scrutiny. The sort of policy we address here loses that battle.

1 Adarand v. Peña, 515 U.S. 200 (1995)

2 Grutter v. Bollinger, 539 U.S. 306, 123 S. Ct. 2325 (2003)

3 See Justice Powell’s opinion in Bakke. Bakke, 438 U.S. 265 (1978)

4 It’s true that many schools, including Harvard, consider certain other forms of diversity during the admissions process (Harvard also considers geographic diversity, for example). 

5 From Justice Thomas in Grutter: “Where the Court has accepted only national security, and rejected even the best interests of a child, as a justification for racial discrimination, I conclude that only those measures the State must take to provide a bulwark against anarchy, or to prevent violence, will constitute a ‘pressing public necessity.’ Cf. Lee v. Washington, 390 U. S. 333, 334 (1968) (per curiam) (Black, J., concurring) (indicating that protecting prisoners from violence might justify narrowly tailored racial discrimination); Croson, supra, at 521 (Scalia, J., concurring in judgment).”

6 That this is the mechanism by which affirmative action policies achieve their ends is not a subject of debate.

This article was edited on April 27, 2021.