미국헌법상 적극적 평등실현조치의 법리와 그 전개

초록

Affirmative action program in South Korean legislation is steadily growing. As it is referred to “positive discrimination” in many countries other than the United States, affirmative action can result in reverse-discrimination from the perspective of the disfavored majority. This problem arouses Korean`s interest in the U.S. affirmative action doctrine. While the Reconstruction-era legislation of the U.S. Congress represented America`s first experimentation with affirmative action program, modern affirmative action took shape in the 1960`s. The jurisprudence of the U.S. Supreme Court since the 1970`s could serve as a good reference to the probable constitutionality controversies in South Korea. Bakke case of 1978 was the first time the Court addressed the constitutional issue of race in admission to higher educational institutions. In this decision the Court set the groundwork for later cases, holding that a public university can use race when admitting students and that under the Fourteenth Amendment racial preference must be examined with the strict scrutiny. In Croson decision of 1989, however, the Court held that an amorphous claim that there had been discrimination generally in the past could not justify the use of unyielding racial quota in apportioning public contracting opportunities. Since Grutter case of 2003, it has been established that attaining a diverse student body in higher education is a compelling interest. Nevertheless universities can not use racial quota in admission. The narrow tailoring prong can be satisfied if universities apply various factors other than race and use race only as a plus factor. Fisher Ⅰ of 2013 and Fisher Ⅱ of 2016 mostly succeeded to the theories of Grutter, declaring that diversity in the student body was a compelling state interest, and that educators are in the best posi- tion to determine the policies to effectuate this goal. But the Court denied deference to the universities on whether the admission plan was narrowly tailored and formed independent judgments. The affirmative action programs in South Korea mainly apply gender quota or socioeconomic status quota to public employment, political participation, and law school admission. According to the U.S. Supreme Court precedents, the legitimacy of the purpose of those policies should be reinforced and the means to fulfill the goal should be more narrowly tailored.

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