Consti 2.docx

DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY, LUCKNOW

CONSTITUTIONAL LAW ( Specialisation)

FINAL DRAFT

TOPIC- AFFIRMATIVE ACTION AND REVERSE DISCRIMATION IN USA

Submitted to: Dr. A.K.Tiwari Asst. Professor(Law) Dr. RMLNLU, Lucknow

Submitted By: Bhanwati Enroll no.150101036 VIII Sem Section- A

RESEARCH METHODOLOGY The research methodology adopted is doctrinal keeping in mind the conceptual, theoretical and evaluative aspects of the topic. Primary as well as secondary sources of information inclusive of books, articles, web sources, and online legal databases have been used from the Dr. Madhu Limaye Library. In this project, study will basically be limited to the topic selected for the project. No other related studies or sources will be discussed in the project as such.

AIM AND OBJECTIVE OF THE PROJECT

Through this project , I will try to achieve the objective to understand affirmative action with respect to Reverse discrimination in the USA. The new efforts of government will have to face and fight the different state’s Acts on Reverse discrimination in USA. The project would only include analysis of reverse discrimination stages and would discuss the problem and new efforts being made by the people with respect to the discrimination.

INDEX

INTRODUCTION THE TRADITIONAL MEANING OF DISCRIMINATION AFFIRMATIVE ACTION TITLE VII OF THE CIVIL RIGHTS ACTS OF 1964 DISCRIMINATION AS "ACTION" OR "CONDITION" Is IT "DISCRIMINATION"? REVERSE DISCRIMINATION: POPULAR DEFINITIONS LEGAL DEFINITIONS WHAT IS REVERSE DISCRIMINATION? REVERSE DISCRIMINATION IN EMPLOYMENT: THE LAW CASES CONCLUSION

INTRODUCTION Institutions of upper education are confronted with difficult employment dispute and allegations of discrimination on a ostensibly routine basis. whereas such discrimination claims are unremarkably raised by minorities girls, since the civil rights movement of the 1960's members of the bulk ( white and / or males) have pursed claims of reversed discrimination.1 Institutions of upper education are confronted with difficult employment dispute and allegations of discrimination on a ostensibly routine basis. whereas such discrimination claims are unremarkably raised by minorities girls, since the civil rights movement of the 1960's members of the bulk ( white and / or males) have pursed claims of reversed discrimination. In 24 July 1984 year past a replacement House of York Times newsman noted: In political Washington, it generally looks virtually everyone likes 'affirmative action,' no one likes 'reverse discrimination,' and hardly anybody likes 'quotas.' All of which can be confusing to those who think about 'affirmative action,' 'reverse discrimination,' and 'quotas' as completely different phrases that means additional or less the identical issue.. . Be that because it might, all of those terms represents one thing way varied, contingent upon UN agency is doing the characterizing.. THE TRADITIONAL MEANING OF DISCRIMINATION The traditional which means of racism is stock-still in american history. it is understood that slavery within the u. s. was supported race. once the war settled the difficulty of slavery, 3 amendments were extra to the Constitution to clarify the standing of former slaves. The result of such laws was to put Black Americans in "a position of political powerlessness" that needed "extraordinary protection from the majoritarian political process".' The rise of the ku Klux klan, innumerous incidents of brutality directed at Black Americans, and therefore the reluctance of Congress to adopt Associate in Nursing anti-lynching law exemplify the continued reality of discrimination within the aftermath of the warfare. Black minorities found very little sympathy from the White majority till well into the 20 th century. 1

https://www.stetson.edu/law/conferences/highered/archive/2004/AvoidingReverseDiscrimination.pdf

The landmark call of the Supreme Court to outlaw segregation within the public faculties in 1954 marked the start of a replacement era in race relations. The Civil Rights movement, that began with the Montgomery bus boycott in 1955, culminated within the adoption of major legislation touching Black Americans. The Civil Rights Act of 1964 and also the vote Rights Act of 1965 were the foremost vital product of associate degree era of social policy. Quota-a number, amount, or share that is officially allowed or necessary.2

AFFIRMATIVE ACTION The term "affirmative action" originated by President John F. Kennedy in 1962. Its main provisions include: (1) not discriminating against historically disfavored minorities (2) advertising as an "equal chance employer" (3) creating special efforts to recruit qualified Americans of color for admission and coaching programs. The Supreme Court has represented the aim of affirmative action as a technique "to dismantle previous patterns of employment discrimination within the future." The relief is to be provided to the category as a full instead of to individual members.' Goals, timetables or quotas could also be a part of an affirmative action program. The term itself was 1st employed in the U.S. below government Order No. 10925, signed into law March 6, 1961, by President John F. Kennedy. it's primarily used to promote actions that are non-discriminative in nature.3 Affirmative action, within the us, an energetic effort to boost employment or instructional opportunities for members of minority teams and for ladies. social action began as a government remedy to the consequences of long-standing discrimination against such teams and has consisted of policies, programs, and procedures that offer preferences to minorities and ladies in job hiring, admission to institutions of upper education, the awarding of

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https://dictionary.cambridge.org/dictionary/english/quota https://www.upcounsel.com/reverse-discrimination

government contracts, and other social benefits. The typical criteria for affirmative action are race, disability, gender, ethnic origin, and age.4 DISCRIMINATION: ACTION OR CONDITION? Discrimination not only has a historical component; it has distinctive meanings depending on whether it focuses on the perpetrator or the victim, the action or the consequences of the action. From the perpetrator's point of view, discrimination describes what someone has "done" or "is doing" to someone else. If discrimination is an act, then the way to end it is to stop discriminating. The following dictionary definition of "discrimination" is action based: "discrimination:... . the act of prejudice or partiality in attitudes, actions, etc., discrimination against minorities." However, one's understanding of "discrimination" changes dramatically if viewed from the victim's point of view. From the victim's perspective, racial discrimination describes those conditions of actual social existence as a member of a perpetual underclass. This perspective includes both the objective conditions of life-lack of jobs, lack of money, lack of housing-and the consciousness associated with those objective conditions-lack of choice and lack of human individuality in being forever perceived as a member of a group rather than as an individual. If one focuses on the results rather than the actions which lead to the results, then "discrimination" does not end until the conditions, which are a product of discriminatory actions themselves change. The most important Supreme Court ruling on racial discrimination, Brown v. Board of Education, stressed the results, not the actions. Chief Justice Warren described the effects of segregation on school children, To separate them from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone. The difference in these perspectives is vital to the debate over "reverse discrimination." From the perpetrator's view, if an action appears to be similar to what has been called

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https://www.britannica.com/topic/affirmative-action - ref167699

discrimination in the past, then it too, is discrimination. However, if the focus is on conditions, it is clear that "reverse discrimination" is based on an illusion. Many Americans of color have lived as a "perpetual underclass" based on race which White Americans have never experienced. Is IT "DISCRIMINATION"? Another way of understanding the meaning of discrimination is through logical analysis. Since "a white majority is unlikely to disadvantage itself for reasons of racial prejudice," and the overwhelming majority of legislators who adopted race conscious legislation in the 1960s In 1975, a New York woman argued that the University of North Carolina violated her rights because the university had a policy which favored children of alumni and state residents over out-of-state applicants. REVERSE DISCRIMINATION: POPULAR DEFINITIONS The term "reverse discrimination" was 1st utilized in the popular media in 1974 when the Supreme Court rendered its call in DeFunis v. Odegaard. In The case concerned charges of racial bias in grad school admissions. The conservative journalist, James Kilpatrick, wrote "A additional acquainted name for this abnormality is 'reverse discrimination.' The short and ugly word is racism."19 In 1976, U.S. News & World Report commented on "a apply called reverse discrimination,". On the flat solid was written. "white male? forget it!" that very same year, a number one Republican politician used the term. In his 1st bid for the presidency, President of the United States commented, "If you happen to belong to an grouping not recognized by the federal government as entitled to special treatment you're a victim of reverse discrimination., 3 years later, Republican legislator Orrin Hatch and former Texas Governor, John Connally additionally used the term. By the 1980s, "reverse discrimination" had lost its quotation marks and was accepted into standard language. In science these days, as an example, the term meant giving "somewhat additional favorable treatment" to Black men over white men or girls. professional General edwin Meese argued that affirmative action programs were "substituting one quite discrimination for one more."

LEGAL DEFINITIONS In discussing "reverse discrimination" authors of law review articles have adopted a wide variety of explanations of the term. It may mean: (a) discrimination against members of the white majority (b) preferential hiring policies or affirmative action (c) many different things to different people (d) code words to express emotional or ideological support or opposition (e) the removal of that benefit which American society has for so long bestowed without question, upon its privileged classes (f) prejudice or bias exercised against a person or class for the purpose of correcting a pattern of discrimination against another person or class. The definitions of "reverse discrimination" can be organized into three categories: (1) discrimination as "action" (2) discrimination as a "condition" and (3) no specific content (as established by the U.S. Supreme Court's 1976 McDonald vs. Santa Fe Trail Transport Co. decision).5 anti-discrimination or reverse discrimination laws were originally enacted to stop discrimination against minorities and teams that were traditionally deprived and denied opportunities within the work, there has generally existed a perception that members of majority teams aren't protected by the identical laws. However, these laws usually disallow all types of discrimination supported protected characteristics, together with those against members of a majority cluster.

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https://employment.findlaw.com/employment-discrimination/reverse-discrimination.html

As a result, the term "reverse discrimination" originated to explain these forms of cases wherever members of a majority cluster are claiming they were discriminated against on the premise of their age, race, gender, or different protected characteristic. WHAT IS REVERSE DISCRIMINATION? While "reverse discrimination" isn't specifically addressed below federal law, the term sometimes refers to things wherever a member or members of a majority are discriminated against on the idea of a protected issue, like race or gender. Common examples would come with a Caucasian individual World Health Organization is discriminated against in favor of a racial minority, or maybe a person suing an leader as a result of a girl was given favorable treatment at work on account of her gender. Diversity initiative programs (such as affirmative action) are usually designed to "level the enjoying field" within the work or academic settings, they additionally might run the danger of breaking discrimination laws despite their historical justifications.6 Examples of "reverse discrimination" could include: 

creating hiring or promoting selections in favor of minority teams, despite the expertise or seniority of Caucasian, male, or alternative majority candidates.

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Hiring or promoting ladies entirely on the idea of their gender over equally or a lot of qualified males.

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Refusing to rent or firing of persons below 40 years old in favor of the hiring of persons over 40 years of age.

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Rejecting an applier for college while admitting a minority applicant entirely on the idea of race (courts have declared that race may only be used as a "factor" in educational applicant decisions).

REVERSE DISCRIMINATION IN EMPLOYMENT: THE LAW Courts have struggled with various types of discrimination cases, including those considered to be "reverse discrimination." Under Title VII of the Civil Rights Act of 1964, employers may not discriminate based on race, sex, gender, religion, or national origin, irrespective of who the victim of discrimination might be. In addition, under Title VII, employers may not

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https://employment.findlaw.com/employment-discrimination/reverse-discrimination.html

create programs and policies that would have a "disparate impact" or adverse effect on members of a protected class. However, courts have interpreted this and similar state laws in different ways in discrimination cases with majority (Caucasian, male, etc.) plaintiffs. Although, some forms of discrimination in favor of minorities and historically disadvantaged groups like women have been upheld by courts, others have not, and it remains a contentious legal issue. As with discrimination claims brought by members of historically disadvantaged groups, socalled reverse discrimination claims are not easily proven. The plaintiff has the burden of proving actual discrimination on the part of the employer based on race, sex, or another prohibited basis. Furthermore, a person making the claim must prove the following: 

Evidence that plaintiff is a member of a protected class (for example, a member of a certain race, sex, or religion);

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Similarly situated employees outside the plaintiff's class received more favorable treatment than the plaintiff;

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Information that supports that the employer discriminates against historically privileged or majority groups; and

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Plaintiff performed the job satisfactorily (if part of a promotion decision).

By the late 1970s the court challenges of affirmative action as a form of “reverse discrimination.”

1969 - President Nixon via Philadelphia Order discourages quotas, but requires contractors to demonstrate affirmative action to increase minority employment.

June 28, 1978 Regents of the University of California v. Bakke This landmark Supreme Court case obligatory limitations on affirmative action to confirm that providing larger opportunities for minorities failed to come back at the expense of the rights of the majority—affirmative action was unfair if it crystal rectifier to reverse discrimination. The case concerned the Univ. of California, Davis, school of medicine, that had 2 separate admissions pools, one for traditional candidates, and another for minority and economically underprivileged students. the college reserved sixteen of its one hundred places for this latter cluster.

Allan Bakke, a white applier, was rejected doubly although there have been minority applicants admitted with considerably lower scores than his. Bakke maintained that deciding him on the premise of his race was a violation of the Equal Protection Clause of the Fourteenth Amendment. The Supreme Court ruled that whereas race was a legitimate consider college admissions, the utilization of such inflexible quotas because the school of medicine had put aside wasn't. The Supreme Court, however, was split 5–4 in its decision on the Bakke case and addressed only a minimal number of the many complex issues that had sprung up about affirmative action.

July 2, 1980 Fullilove v. Klutznick While Bakke affected down strict quotas, in Fullilove the Supreme Court dominated that some modest quotas were absolutely constitutional. The Court upheld a federal law requiring that fifteenth of funds for structure be put aside for qualified minority contractors. The “narrowed focus and restricted extent” of the affirmative action program failed to violate the equal rights of non-minority contractors, consistent with the Court—there was no “allocation of federal funds according to inflexible percentages entirely supported race or ethnicity.”

May 19, 1986 Wygant v. Jackson Board of Education This case challenged a college board’s policy of protective minority staff by losing nonminority academics initial, while the non-minority staff had seniority. The Supreme Court dominated against the varsity board, maintaining that the injury suffered by non-minorities affected couldn't justify the advantages to minorities: “We have previously expressed concern over the burden that a preferential-layoffs theme imposes on innocent parties. In cases involving valid hiring goals, the burden to be borne by innocent people is diffused to a substantial extent among society typically. although hiring goals might burden some innocent people, they merely don't impose the identical quite injury that layoffs impose. Denial of a future employment chance isn't as intrusive as loss of an existing job.”

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Feb. 25, 1987 United States v. Paradise In July 1970, a court found that the State of Alabama Department of Public Safety consistently discriminated against blacks in hiring: “in the thirty-seven-year history of the patrol there has never been a black trooper.” The court ordered that the state reform its hiring practices to finish “pervasive, systematic, and obstinate discriminatory exclusion of blacks.” A full 12 years and several other lawsuits later, the department still had not promoted any blacks higher than entry level nor had they enforced a racially truthful hiring system. In response, the court ordered specific racial quotas to correct things. for each white employed or promoted, one black would even be employed or promoted till a minimum of 25 of the higher ranks of the department were composed of blacks. This use of numerical quotas was challenged. The Supreme Court, however, upheld the utilization of strict quotas during this case together of the sole means that of combating the department’s public and resistant racism. Jan. 23, 1989 City of Richmond v. Croson This case concerned social action programs at the state and native levels—a Richmond program setting aside 30th of town construction funds for black-owned companies was challenged. For the primary time, affirmative action was judged as a “highly suspect tool.” The Supreme Court dominated that an “amorphous claim that there has been past discrimination during a specific business cannot justify the utilization of an unyielding racial quota.” It maintained that social action should be subject to “strict scrutiny” and is unconstitutional unless racism are often established to be “widespread throughout a specific business.” The Court maintained that “the purpose of strict scrutiny is to `smoke out’ illegitimate uses of race by reassuring that the legislative body is following a goal necessary enough to warrant use of a extremely suspect tool. The take a look at additionally ensures that the means that chosen `fit’ this compelling goal so closely that there's very little or no risk that the motive for the classification was illegitimate racial prejudice or stereotype.”

June 12, 1995 Adarand Constructors, Inc. v. Peña What Croson was to state- and local-run social action programs, Adarand was to federal programs. The Court once more concerned “strict scrutiny” in deciding whether or not discrimination existed before implementing a federal social action program. “Strict scrutiny” meant that social action programs consummated a “compelling governmental interest,” and were “narrowly tailored” to suit the actual scenario. though 2 of the judges (Scalia and Thomas) felt that there ought to be a whole ban on social action, the bulk of judges declared that “the sad persistence of each the follow and therefore the lingering effects of racism against minority teams during this country” even the utilization of race-based remedial measures in bound circumstances. July 19, 1995 White House guidelines on affirmative action President Clinton asserted in a speech that while Adarand set "stricter guidelines to order change of governmental policy regarding minorities in society, it really reaffirmed the requirement for governmental policy regarding minorities in society and reaffirmed the proceeding with presence of methodical separation in the United States." In a White House memorandum on the same day, he called for the elimination of any program that “(a) creates a quota; (b) creates preferences for unqualified individuals; (c) creates reverse discrimination; or (d) continues even after its equal opportunity purposes have been achieved.” March 18, 1996 Hopwood v. University of Texas Law School Cheryl Hopwood and three other white graduate school candidates at the University of Texas tested the school's governmental policy regarding minorities in society program, attesting that they were rejected as a result of uncalled for inclinations toward less qualified minority candidates. The Supreme Court maintained a lower-court deciding that struck down as unlawful the University of Texas affirmative action program, contending in that there was no convincing state enthusiasm to warrant utilizing race as a factor in confirmations choices. Subsequently there were further administrative and constituent difficulties to governmental policy regarding minorities in society in numerous pieces of the nation. 7

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https://www.britannica.com/topic/affirmative-action#ref167699

As a result, the 5th U.S. Court of Appeals suspended the university’s affirmative action admissions program and ruled that the 1978 Bakke decision was invalid—while Bakke rejected racial quotas it maintained that race could serve as a factor in admissions. In addition to remedying past discrimination, Bakke maintained that the inclusion of minority students would create a diverse student body, and that was beneficial to the educational environment as a whole. Hopwood, however, rejected the legitimacy of diversity as a goal, asserting that “educational diversity is not recognized as a compelling state interest.” The Supreme Court allowed the ruling to stand. In 1997, the Texas Attorney General announced that all “Texas public universities [should] utilize race-impartial criteria.” Nov. 3, 1997 Proposition 209 enacted in California A state restriction on all forms of affirmative action was passed in California: “The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.” Proposed in 1996, the controversial ban had been delayed in the courts for almost a year before it went into effect. Dec. 3, 1998 Initiative 200 enacted in Washington State Washington becomes the second state to abolish state affirmative action measures when it passed “I 200,” which is similar to California’s Proposition 209. Feb. 22, 2000 Florida bans race as factor in college admissions. Florida legislature supports education instituion component of Gov. Jeb Bush’s “One Florida” initiative, aimed at ending affirmative action in the state. Dec. 13, 2000 University of Michigan’s undergrad affirmative action policy In Gratz v. Bollinger, a federal judge ruled that the use race as a factor in confirmations at the University of Michigan was sacred. The substance of the college's contention was as per the following: similarly as inclination is allowed to offspring of graduated class, grant competitors, and others bunches for reasons regarded useful to the college, so too does the affirmative action program serve “a compelling interest” by providing educational benefits derived from a diverse student body.

March 27, 2001 Univ. of Michigan Law School’s affirmative action policy In Grutter v. Bollinger, a case similar to the University of Michigan undergraduate lawsuit, a different judge drew an opposite conclusion, invalidating the law school’s policy and ruling that “intellectual diversity bears no obvious or necessary relationship to racial diversity.” But on May 14, 2002, the decision was reversed on appeal, ruling that the admissions policy was, in fact, constitutional.

June 23, 2003 Supreme Court Upholds Affirmative Action in University Admissions In the most important affirmative action decision since the 1978 Bakke case, the Supreme Court (5–4) maintains the University of Michigan Law School's strategy, deciding that race can be one of numerous components considered by schools while choosing their understudies since it encourages "a convincing enthusiasm for acquiring the instructive advantages that stream from a different understudy body." The Supreme Court, be that as it may, ruled (6-3) that the more standard methodology of the University of Michigan's undergrad confirmations program, which utilizes a point framework that rates understudies and grants extra indicates minorities, must be adjusted. The undergrad program, not at all like the law school's, does not give the "individualized thought" of candidates considered vital in past Supreme Court choices on governmental policy regarding minorities in society. with Grutter v. Bollinger.

June 28, 2006 Supreme Court Rules Against Considering Race to Integrate Schools In Parents v. Seattle and Meredith v. Jefferson, affirmative action in society endures a misfortune when a harshly isolated court rules, 5– 4, that programs in Seattle and Louisville, Ky., which endeavored to keep up assorted variety in schools by thinking about race when doling out understudies to schools, are unlawful.

November 4, 2008 Ballot Measure to Ban Affirmative Action Goes Before Voters Ballot measures proposing to ban affirmative action — race and sex based inclinations by open substances — goes before voters in two states, Nebraska and Colorado. The boycott goes with over half of the vote in Nebraska. Voters in Colorado, however, dismiss the proposed boycott.

June 29, 2009 Ricci v. DeStefano, Firefighters Go to Court In a claim brought against the city of New Haven, 18 offended parties—17 white and 1 Hispanic—contended that aftereffects of the 2003 lieutenant and commander tests were tossed out when it was resolved that couple of minority firemen fit the bill for headway. The city asserted they tossed out the outcomes since they dreaded obligation under a unique effect rule for issuing tests that oppressed minority firemen. The offended parties guaranteed that they were casualties of switch separation under the Title VII of the Civil Rights Act of 1964. The Supreme Court ruled (5– 4) for the firemen, saying New Haven's "activity in disposing of the tests was an infringement of Title VII."8 June 24, 2013 Court Orders University to Re-examine Affirmative Action Policy In Fisher v. University of Texas, the court enables colleges to keep thinking about race as a factor in admissions to accomplish assorted variety, yet it tells them that they should demonstrate that "accessible, serviceable race-impartial choices don't get the job done" before thinking about race. The court ruled 7– 1 to send the case back to the U.S. Court of Appeals for the Fifth Circuit for further survey to decide whether the school breezed through the trial of "exacting examination," the largest amount of legal audit. The decision is viewed as a trade off between the court's traditionalist and liberal factions. In Fisher v. University of Texas at Austin (2016) 579 U.S, the Supreme Court vacated and remanded an appeals court decision that had rejected a challenge to an affirmative action , when University of Texas candidate Abigail Fisher, who is Caucasian, was denied admission to the school in 2008. She contended that by utilizing race as a factor in the application procedure, she and other Caucasian candidates were distraught and along these lines oppressed. Nonetheless, the Court again held for this situation that "the race-cognizant confirmations program being used at the season of solicitor's application is legal under the Equal Protection Clause." Finding that the lower court had not exposed the program to severe examination, the most-requesting type of legal survey. After the interests court maintained the program a second time, the Supreme Court asserted that choice (2016), discovering that exacting examination had been fulfilled.9

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https://web.uri.edu/affirmativeaction/affirmative-action-history/ https://www.britannica.com/topic/affirmative-action#ref167699

CONCLUSION The term reverse discrimination is well established in our culture, and potential majority plantiffs understand that they may seek redress under a theory that have been discriminated against because of their status. Despite the phrasing, separation dependent on a presume order like race or sex is unlawful and has no spot in advanced education organization. The test is to guarantee that institutional basic leadership process depend on target authentic, non unfair elements.

BIBLIOGRAPHY

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https://escholarship.org/content/qt8dx5404v/qt8dx5404v.pdf

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https://www.britannica.com/topic/affirmative-action#ref167699

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https://employment.findlaw.com/employment-discrimination/reversediscrimination.html

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https://employment.findlaw.com/employment-discrimination/reversediscrimination.html

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https://www.upcounsel.com/reverse-discrimination

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https://www.stetson.edu/law/conferences/highered/archive/2004/AvoidingReverseDis crimination.pdf

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https://web.uri.edu/affirmativeaction/affirmative-action-history/

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https://scholarship.law.edu/cgi/viewcontent.cgi?article=2445&context=lawreview