The purpose of this paper is to evaluate and compare two strategies designed to promote ethno-racial inclusion that were initiated in France and the United States in the context of higher education. In particular, I examine the Priority Education Agreements Program or CEP, an innovative affirmative action program which was implemented in 2001 by the Sciences Po, one of France’s elite universities, in relation to the Texas Ten Percent Plan that was established in 1997 in the United States by the State of Texas.
Sections I and II of this paper will provide the historical and social contexts in which the proxy strategies created by Sciences Po and the State of Texas emerged. I then develop the fundamental points of my argument which are that: (1) race and ethnicity still “matter” and will need to be considered in the administration of college and graduate admissions programs despite the declaration, which I dispute, that American society has entered a post-racial era and France’s continued celebration of its egalitarian principles at the expense of the attainment of substantive equality; (2) to the extent that laws permit the consideration of ethnicity and race in the United States, they should be retained for as long as necessary to accomplish equal education opportunities and meaningful access to higher education; (3) where laws permitting an express consideration of ethno-racial factors do not exist, as is the case in France, the issue of amending the relevant laws should be revisited to allow for an express consideration of these classifications to facilitate the creation of effective affirmative action approaches; (4) proxy strategies are to be encouraged because they are effective, to some degree, in achieving diversity and improving access to higher education for underrepresented ethnic and racial minority groups, and because they are politically palatable and legally viable for accomplishing the stated goals in the United States and France; and (5) while creative approaches such as proxies should be pursued, it is important to build some flexibility into the strategies and not to over rely on them particularly if it becomes apparent that they are not functioning to allow for the admission of a “critical mass” of underrepresented ethno-racial minorities to higher education institutions.
In connection with my analysis of how the Sciences Po and Texas have navigated certain constitutional issues with respect to the implementation and maintenance of the specific admission schemes I examine, I rely upon select laws and legal cases for each country. In addressing the French constitutional issues, in Section III I examine one of the decisions rendered by France’s high legal advisory council, the Conseil constitutionnel, the Preamble and Article 1 of the 1958 Constitution of the French Fifth Republic, the 1789 Declaration of the Rights of Man, and the Preamble to the 1946 French Constitution of the Fourth Republic. In Sections II and IV, I primarily focus upon the United States and the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution, Section 601 of Title VI of the Civil Rights Act of 1964, Section 1981(a) of 42 U.S.C. 1981, and the cases Brown v. Board of Education, Regents of the University of California v. Bakke, Grutter v. Bollinger, Gratz v. Bollinger, Fisher v. University of Texas at Austin, and Hopwood v. Texas for my analysis.
After examining the American and French strategies of ethno-racial inclusion in terms of their historical, social, political, and legal contexts, in Sections V and VI, I offer some thoughts on how the two programs compare overall, the positives and shortcomings of each, and the lessons that Sciences Po’s plan has for the United States and Texas’ plan has for France. I conclude, in Section VII, that while proxy strategies can be useful from the perspective of the goals of ethno-racial diversity and of improving access to equal educational opportunities for minorities, they alone are likely to prove insufficient to fully meet these goals because of the particular histories of the two countries, persistent socio-economic barriers and disparities, and the state of ethno-racial relations in each. Further, I maintain that in order for academic institutions to be successful in their endeavors to be inclusive and serve historically underrepresented minorities and increasingly varied multi-racial and ethnic populations, along with majority populations: (1) ethnicity and race will need to be taken into account and laws must be maintained or fashioned to address this necessity; and (2) the architects and proponents of proxy strategies must adhere to transparency in the outcomes so that, if the intended goals are not being attained, there is a credible basis for making adjustments to the schemes, as necessary.
Temple Political & Civil Rights L. Rev.
Kristen Barnes, 22 Temple Political & Civil Rights Law Review (2012)