미국의 적극적 평등실현조치와 위헌심사기준

Affirmative action is a set of actions designed to eliminate existing discrimination, to remedy lingering effects of past discrimination, and to create systems to prevent future discrimination. The actual phrase “affirmative action” was first used in President John F. Kennedy’s 1961 Executive Order which requires federal contractors to “take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color, or national origin.” The same language was later used in Lyndon Johnson’s Executive Order, and he expanded the Executive Order to include affirmative action requirements to benefit women. Basically, governments programs that attempt to assist racial or ethnic minorities are strictly scrutinized just the same as those that purposefully disadvantage minorities. It means a racial classification will be upheld only if it is necessary to promote a compelling governmental interest. Sex-based classifications, ‘invidious’ or ‘benign’, get middle-level review. That is, gender-based classifications must be ‘substantially’ related to the achievement of ‘important’ governmental objectives. The most frequently identified objective for affirmative action is to remedy past discrimination. Another important objective of affirmative action is enhancing diversity. This justification is most frequently invoked with regard to decisions by colleges and universities in admitting students. Supporters of affirmative action argue for a lower level of scrutiny for judicial review of affirmative action programs. They argue there is a significant difference between the government using racial classifications to benefit minorities and the government using racial classifications to disadvantage minorities. The debate over whether strict or intermediate scrutiny should be used for sex-based classifications has been complicated by the affirmative action debate. Many of those who previously supported strict scrutiny for gender classifications now are concerned that such review would make it much more difficult for the government to engage in affirmative action programs to benefit women. In 2007, by a vote of 5 to 4, the Supreme Court invalidated voluntary integration plans in the school districts of Seattle and metropolitan Louisville, ruling that using a student’s race to govern the availability of a place at a desired school, even for the purpose of preventing resegregation, violated the equal protection. Supporters of affirmative action worry that the decision signals that it may only be a matter of a short time before the Court reconsiders the case of preferential admissions.