Reasons we should reject a ban on horse slaughter

In Chile, you can find it in charqui, in Kazakhstan, you can find it in kazy and shuzhuk, in Japan, you can find it in baniku, and in Italy, you can find it in Pastissada. But here in America, where we call pig’s meat pork and cow’s meat steak, we simply call this international ingredient, horse meat. With such a lack of an appetizing and dehumanizing name, it is no wonder that the debate over whether horses should be slaughtered for human consumption in the United States even exists.

On September 7, 2006, the House of Representatives of the United States passed the bill H.R. 503, otherwise known as the American Horse Slaughter Prevention Act, that would (if ratified by the Senate) “prohibit the shipping, transporting, moving, delivering, receiving, possessing, purchasing, selling, or donation of horses and other equines to be slaughtered for human consumption, and for other purposes” (United States 109^th Congress, 1). This legislation is the latest manifestation over the debate of whether American’s should allow the practice of horse slaughter for human consumption to continue. In addition to some legislators, the Humane Society of the United States and celebrities like Bo Derek and Willie Nelson are campaigning for the enactment of a ban on horse slaughter, arguing that, (as it says in the passed legislation) “horses and other equines play a vital role in the collective experience of the United States and deserve protection and compassion …[and] unlike cows, pigs, and many other animals, horses and other equines are not raised for the purpose of being slaughtered for human consumption” (United States 109^th Congress). However, there are many others, including the American Veterinary Medical Association and the American Association of Equine Practitioners that are campaigning against such a ban.

Likewise, I am resolved that the United States should reject a ban on the practice of horse slaughter for human consumption. A ban on horse slaughter for human consumption should be rejected in the United States because it will have adverse consequences that will hurt the country more so than the current practice does. Firstly, a ban will have adverse economic consequences for Americans. Secondly, it will create conditions for horses that would be more harmful to their welfare. Finally, it would alienate segments of our population who choose to eat horsemeat for cultural, economical, and health reasons which is harmful to a society that professes tolerance and the equal treatment of others.

The first reason why the United States should reject the ban on horse slaughter for human consumption is because it will have adverse economic consequences for Americans. Banning horse slaughter would both increase the amount of taxpayers’ money being spent by the government for the enforcement of the ban while reducing the amount of money being put into the U.S. economy as a result of the practice.

Currently, USDA inspections of horse slaughterhouses are not paid for by taxpayers, but are paid for by the owners of the slaughterhouses on a fee-for-service basis that is “in line with the practice that governs other animals that are not covered by the Federal Meat Inspection Act, such as rabbit and bison” (Zeller, 1). According to Representative Stephanie Herseth (Democrat from South Dakota), who voted against the ban on horse slaughter, “this system is a reasonable approach that has allowed the industry to continue doing business…providing an outlet for old, injured, and unwanted horses but relieving taxpayers of the burden of paying for it” (Herseth, 1). However, if the ban on horse slaughter were implemented, federal money will have to be allocated in order for the ban to be enforced. As it is written into the bill that would ban horse slaughter, this burden will add up to be $5 million of federal funding, further widening our country’s budget deficit and further straining the state of our economy.

Furthermore, though the proponents of the ban on horse slaughter try to cast the business as a benefit for only the owners of these slaughterhouses, these companies employ working class American citizens to work at their plants and pay American horse owners for their unwanted horses, bringing money into the U.S. economy. Were horse slaughter to be banned, our economy would be further burdened by the loss of jobs for the “hundreds of U.S. citizens that work in the slaughterhouses” and there would be a loss of monetary compensation for owners who sell their unhealthy or unwanted horses and are usually able to recoup at least some of their losses for about $300 to $400 a horse (Zeller, 2).

Secondly, a ban on the slaughter of horses would not only cause economic losses for our country, but it will also create conditions for horses that would be more harmful to their welfare. A ban on horse slaughter, though it is often construed as an effort to protect the welfare of horses, would actually create worse conditions for their welfare by eliminating an outlet for unhealthy and unwanted horses.

According to the American Veterinary Medical Association, “removing the process as a management option [for unhealthy and unwanted horses] actually poses a greater risk to horse welfare” (Gillete, 1). Each year, slaughterhouses process thousands of horses, according to the USDA, processing nearly 95,000 just in 2005 (United States, “Livestock 2005 Summary”). What then, is to happen to these horses, once this outlet is removed?

For Jerry Finch, the founder of the anti-slaughter, horse rescue group, Habitat for Horses, their mission to rescue horses who are suffering from neglect and inhumane living conditions is a struggle against the odds, especially with the surplus of neglected horses due to “backyard breeders” (Olsson, 4). According to Finch, these horse owners “breed and breed” creating a surplus of horses for no apparent reason (Olsson, 4). It is horses in these horrid living conditions that small organizations, such as Habitat for Horses in which Finch holds both the titles of “founder” and “main pooper scooper,” attempt to rescue horses from (Olsson, 3). However, once horse slaughter is eliminated as an option, the number of horses that suffer under such conditions will increase and consequently add thousands to the number of neglected, unhealthy and unwanted horses that Finch and other groups are scrambling to rescue from a life of suffering. According to the American Veterinary Medical Association, were horse slaughter to be banned, this would “overwhelm the ability of horse protection facilities to care for them” thus worsening the conditions for horses (“AVMA outlines flaw in horse slaughter bill”, 2).

Furthermore, many of the horses who are rescued by groups such as Habitat for Horses were not even part of that number bound for the slaughterhouse to begin with since “many are too skinny to be worth much” (Olsson, 4). This only makes the burden that much heavier for such independent rescue organizations to become the primary outlet for unhealthy and unwanted horses were a ban on horse slaughter enacted, and, with roughly 95,000 more horses for these organizations to take in, it is hard to imagine that they would be able to take care of them all. Thus, with a ban on horse slaughter, the United States would be left with in increasing number of horses living for a prolonged period of time in inhumane conditions.

Finally, though at times it is the welfare of horses that appears to be driving the force behind the move to ban horse slaughter in the United States, a closer examination of the argument reveals that the driving force behind the ban is more likely a cultural bias that gives preference to horses over other animals. Such a ban on horse slaughter would alienate segments of our population who choose to eat horsemeat for cultural, economical, and health reasons and would be harmful to our society which professes tolerance and the equal treatment of others.

Not all Americans share this cultural preference for horses and accordingly, they choose to eat horse meat despite the views of the majority. Many Americans still participate in the cultures of their homelands. For example, when I grew up in Hawai`i, my neighbors (who were American citizens) would cook a horse for celebrations, consistent with the Tongan traditions of from their family’s past such as drinking the Kava root. However, proponents of the ban on horse slaughter, such as Representative John E. Sweeney who sponsored the legislation H.R. 503, claim that “Americans do not eat our horses” (Sweeney, 1). This leads one to question just who proponents of the ban on horse slaughter consider to be Americans. Would those who choose to eat horse, in line with traditions from their cultures then, not be American?

A ban on horse slaughter shows a gross intolerance for the values of other cultures by assuming that the values of one culture outweigh the values of the rest simply because one culture outnumbers the other. This intolerance was revealed in the refusal of an amendment to the current legislation to ban horse slaughter, that would have precluded from the bill “groups who have historically used equine meat for religious or cultural reasons,” such as the Native American tribes of the Great Northern Plains, including the Great Sioux Nation (King, 1). A ban on horse slaughter would be harmful to our society by functioning to eliminate the cultural and religious practices of groups in the minority. Moreover, such a ban based on cultural beliefs sets a dangerous precedent by allowing the U.S. government to decide what constitutes ‘American culture’ and what does not.

Even if we were to disregard the consequences of creating an official American culture that does not eat horse, we can still find instances of horse consumption by those in line with the mainstream, American culture. In the early seventies, stores in “Hawai`i, New Jersey, and Connecticut offer[ed] cheap horse meat” in a reaction to the rising costs of beef (Olsson, 3). Though many Americans can currently afford to eat beef today, a ban on horse slaughter would eliminate an economical alternative source for meat were beef prices to rise again as they did in the seventies. A ban on horse slaughter would serve to alienate those who would not be able to afford any of the meats preferred by the mainstream and it would eliminate and economical alternative for those who do not have enough money.

Furthermore, in addition to cultural and economical reasons, horse is eaten because of health reasons. One reason accounting for the popularity of horsemeat in Europe and Japan is due “in large part because horses don’t carry mad cow disease or foot-and-mouth disease” (Eig, 2). Horse meat is also a healthy alternative to other meats because it is low in fat, high in protein, and has “40% fewer calories than even the leanest beef while supplying 50% more protein and up to 30% more iron” (“Horse Meat”). A ban on horse slaughter would eliminate this beneficial meat alternative for those who choose to eat horse meat for health reasons, thus restricting their freedom of choice. Therefore, a ban on the horse slaughter would be harmful to our society because it would alienate segments of our population who choose to eat horse meat for cultural, economical, and health reasons.

Though the proponents of a ban on horse slaughter feel that it should be banned because of the adverse consequences to horses, we must also consider the adverse consequences to both horses and humans that could result because of a ban. Thus, a ban on horse slaughter for human consumption should be rejected in the United States because it will have adverse consequences that will hurt the country more so than the current practice does. Such consequences include the adverse economic consequences for Americans, the creation of conditions for horses that would be more harmful to their welfare, and the alienation of segments of our population who choose to eat horsemeat for cultural, economical, and health reasons which is harmful to a society that professes tolerance and the equal treatment of others.

This is why I am resolved that the United States should not ban the practice of horse slaughter for human consumption. One cultural value that we frequently use is that of freedom. We have the freedom to keep cows, pigs, and horses as pets and the freedom to be vegetarians, vegans, and meat-eaters. It follows then, that we should also have the freedom to decide what kind of meat we can eat. If all men are created equal, then does it not follow that so are all animals? Or is it as George Orwell once observed that “all animals are created equal, but some animals are more equal than others” (Orwell, vi).

Works Cited
“AVMA outlines flaws in horse slaughter bill.” DVM. March 2004: 1E+. ProQuest. 20 Nov. 2006 . Eig, Jonathan. “Horse d’Oeuvres? Mister Ed Becomes the Other Red Meat.” The Wall Street Journal. 30 March 2001: A1. ProQuest 20 Nov. 2006 < did="70301689&sid="2&Fmt="3&clientId="4676&" rqt="309&VName="PQD">. Gillete, Bill. “American Horse Slaughter Protection Act moves to Senate.” DVM.Oct. 2006: 12-13. ProQuest. 20 Nov. 2006 < did="1166663341&sid="1&Fmt="3&clientId="4676&RQT="309&VName="PQD">. Herseth, Stephanie. “Rep. Herseth Opposes Bill to Ban Horse Slaughter.” U.S. Federal News Service. 7 Sept. 2006. 10 Oct. 2006 . “Horse Meat.” Wikipedia. 2006. 20 Nov. 2006 .King, Steve. “Rep. King: Don’t Waste Our Time.” U.S. Federal News Service. 7 Sept. 2006. 15 Oct. 2006 .Olsson, Karen. “Eating a Dead Horse.” Texas Monthly. Dec. 2006: 1+. ProQuest. 29 Nov. 2006. Orwell, George. Animal Farm. New York: Penguin Books, 1996. Sweeney, John E. “Rep. Sweeney Bans Slaughter of Horses.” U.S. Federal News Service. 7 Sept. 2006. 15 Oct. 2006 . United States. Cong. House. 109th Congress, 2nd Session. H.R. 503, A Bill to Amend the Horse Protection Act… [introduced in the U.S. House of Representatives; 1 Feb. 2005]. 19 Oct. 2006 . United States. United States Department of Agriculture, National Agriculture Statistics Service. “Livestock Slaughter 2005 Summary.” United States Department of Agriculture. Mt An 1-2-1 (06) a. March 2006. 15 Oct.2006 .Zeller, Shawn. “Horse Slaughter War Comes to Washington.” CQ Weekly. 20 Jan. 2006. 10 Oct. 2006 .

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Kenneth Burke's Guilt Redemption Cycle in Dove's "Campaign for Real Beauty"

In 2004, large, wrinkled, and small-breasted women took center stage in a line of beauty advertisements. In 2005, they were taking that stage in their underwear for Dove’s “Campaign for Real Beauty.” To call it a new marketing scheme would be an understatement; to call it an effort to show a revolution in beauty advertising would be more fitting. Dove’s “Campaign for Real Beauty” is a dramatization of transcendence from an existing reality in beauty marketing to a new reality, a presumably better reality, and one in which Dove is the narrator.

In addition to the conventional forms of television, magazines, and outdoor advertising, Dove’s campaign includes interactive, philanthropic, and even border-line philosophic components. The hub of this activity is the “Campaign for Real Beauty” website which features a forum for women’s issues. Other parts of the campaign include fundraising with the Dove Self-Esteem Fund, academic research with “The Real Truth about Beauty: A Global Report,” self-esteem workshops for young girls, a touring photography exhibit, and the establishment of the Program for Aesthetics and Well-Being at Harvard. The most well-known part of the campaign, however, is the advertisements that feature ‘real’ women with different shapes, sizes, and imperfections.

Dove’s advertisements have received a lot of buzz in both mainstream and trade publications. In 2005, Dove’s campaign took home the International Advertiser of the Year award for its parent company, Unilever (“Dove”, 2005). After running a Super Bowl commercial in 2006 featuring young girls as victims of a negative self-image, Dove “won the [viewer] write-in vote by a landslide” on AdAge.com for its commercial (“What you say:…”, 2006). As for the product, Dove experienced an initial surge in sales with an increase of 163 percent over the first month of the campaign (“Dove”, 2005). By the end of 2005, Dove’s sales were up 15% overall (Wasserman, 2005).

Why was Dove’s campaign so successful? True, their advertisements were often found “striking” which can help to explain its popularity, but merely shocking consumers does not account for the surge in its sales (Stevenson, 2005). The most recognizable and eye-catching part of the campaign is its advertisements featuring ‘real’ women which are meant to grab attention. Beyond these advertisements is the rest of the campaign: the support groups, researchers, and fundraising, all working together to create a story for consumers. To help explain its success, the story told in Dove’s campaign can be examined in light of Kenneth Burke’s concept of the guilt-redemption cycle.

Kenneth Burke’s concept of the guilt-redemption cycle comes out of his understanding of the effectiveness of religious cosmogonies. Burke found that the narratives found in religion were successful for motivating followers and often followed a pattern of order, pollution of the order, casuistic stretching, guilt, victimage, and transcendence to a new order. This pattern of story telling can be found in Dove’s campaign.

“When all is as it should be, we are comfortable with our world, and we are in touch with the sources of our being” (Durbin, 2006). This is order. In Dove’s narrative, order is women accepting their looks and having a positive self-esteem. This is how the world should be, and when it is, only then can women truly be comfortable, according to Dove.

However, something is “found wanting” in this order, and this is pollution (Durbin, 2006). In Dove’s narrative, the marketing of beauty products is a polluted order; in particular, the effects of advertisements on the self-esteem and well being of women. This is a key point in Dove’s campaign. When our world is in order, women feel good about their selves and celebrate their individuality. However, this is not the case in our world where women have negative self images. Thus, this order is polluted.

In its 2006 Super Bowl commercial, Dove told the story of this pollution. The commercial showed young girls with captions such as, “thinks she’s ugly” and “afraid she’s fat.” Dove demonstrates this pollution by the creation of an image of a corrupted world for the self-esteem of women at the hands of a narrow definition of beauty. Ironically, behind this pollution are the mass media and the advertising industry who has contributed to the “stereotypical views and standards of beauty” that pollute the order (Ectoff, 2004). While the cause of the pollution is explicitly stated in Dove’s writings that reach a smaller audience, the message is still received by the larger audience. In responses in Dove’s chat room to their Super Bowl commercial, viewers often commented that they were glad that Dove was dealing with the “effects of…media” on “self-esteem issues” (jaena, 2006). Even though there was no mention of the media as the source of the pollution, viewers were still able to draw out that message.

At this point, Dove is saying that this pollution can no longer exist in our order. According to Burke’s concept of the guilt-redemption cycle, there is a limit on how much pollution can be in our order. In order to deal with the pollution, Burke suggests that we take part in casuistic stretching which “attempts to stretch the old order to encompass the new perspective” (Durbin, 2006). In Dove’s narrative, we have previously accepted the definition of beauty created in the media; however, as this definition has progressively narrowed to a set of “limited ideals,” it has become removed from our frame of acceptance (Ectoff, 2004). Along the way, women have stretched their frame of acceptance to encompass this changing definition of beauty, however, like a rubber-band, this frame of acceptance has been stretched too far and, according to Dove’s narrative, this narrow definition of beauty has become unacceptable and is polluting our order.

As a result, there is “a sense of…corporate guilt over the pollution of our order” (Durbin, 2006). According to Dove’s narrative, this guilt is what their “Campaign for Real Beauty” is responding to. In the conclusion of its study, Dove claims that it is the “obligation of…the mass media” to “faithfully represent [beauty] in the ways in which they speak about it” (Ectoff, 2004). This guilt operates as a key motivator in moving on through the guilt-redemption cycle. For Burke, humans have an innate need to be perfect. Guilt occurs when we realize that we are not perfect because there is pollution in our order. Therefore, guilt is not acceptable and must be dealt with.

According to Burke’s guilt-redemption cycle, guilt must be atoned for by “placing it on a party and symbolically killing that party” (Durbin, 2006). This is done through scape-goating (placing the guilt on others) and mortification (placing the guilt on oneself). In Dove’s narrative, the guilt is atoned for by placing it on themselves and taking part in mortification. Though they do not explicitly claim to be responsible for the pollution in the order, they are responsible by their inclusion in the beauty industry. According to Dove’s narrative, they are the first to step up and accept the blame, atoning for the guilt, and are therefore the first to propose a new order and move forward. This allows them to avoid the sense of hypocrisy of a polluter criticizing other polluters because, even though they belong to the larger group of polluters (the beauty industry), they are no longer themselves polluting. Dove symbolically kills the old ways of advertising and the old definition of beauty with their new advertisements full of ‘real’ women. This provides Dove with a sense of trustworthiness and allows them to create and control the new order that they propose we transcend to.

In Burke’s concept of the guilt-redemption cycle, transcendence is the process of redemption by which we move from our “old order and rise to a new order” (Durbin, 2006). In Dove’s narrative, their ‘Campaign for Real Beauty’ is motivating us to transcend form our old order. The new order that they propose is one in which the media portrays a broad definition of beauty. In this new order, women will have better self-esteems. We will accept this as our new order because it resembles our previous order before it became polluted. The stage of transcendence is important in this story because Dove makes us feel included in the transcendence to a new order.

This inclusion is achieved by the symbols that Dove uses in its campaign. Some of Dove’s earlier advertisements featuring ‘real’ women placed check-mark boxes beside their pictures with options such as “oversized” or “outstanding.” This strategy capitalized on the symbolic meanings of the images involved. The ‘real’ woman in the advertisement symbolizes a break in the traditional choice of models (i.e. the new order). The option of ‘oversized’ symbolizes the types of classification that the pictured woman receives in accordance to the rhetoric of the old order. The option of ‘outstanding’ symbolizes the new classification proposed for the woman using the rhetoric of the new order. The check-mark boxes symbolize democracy by its connotations to voting for which order we prefer to live in. The voting symbolizes the ideal process for change by American standards. The advertisement appeals to our notions of guilt and empathy for the model, and we are guided towards voting for the new order and made to feel a part of the transcendent process. The relationship between this transcendence to a new order and the democratic process in Dove’s narrative is underlined by their labeling of their efforts as a campaign.

Dove’s choice in names in their campaign is a part of their process in which their narrative seeks to provide us with a new order in which we identify with Dove’s point of view. Burke would describe this as identifying with Dove’s frames of acceptance and rejection. For Burke, each word choice encompasses different beliefs and perceptions. Therefore, Dove’s entire campaign is meant to help us to identify with their frame of acceptance. Dove has made a drama out of the definition of beauty in the media through the guilt-redemption cycle. The new order proposed by Dove is consistent with their frame of acceptance. Once we have gone through the guilt-redemption cycle and begin to identify with Dove’s frame of acceptance, then Dove has succeeded in gaining the ability to motivate us.

But what is Dove trying to motivate us to do? According to their narrative, they are trying to recruit us in a campaign to broaden the definition of beauty. However, this is the motivation according to the story that Dove tells us. At its heart, Dove’s campaign is still advertising. While the old way of beauty advertising was to tell women that they needed to buy a beauty product in order to be beautiful, Dove’s message in the new order is that women already are beautiful. This only begs the question of why we should continue to use Dove’s products.

One interpretation is that Dove’s products are not claiming to make you more beautiful and are simply necessities; they are the brand that women who know that they are already beautiful buy. In a comment in Dove’s chat-room, one user proclaimed, “I will definitely buy more Dove products just because they obviously care about the real me” (Empress, 2006). Another interpretation is that by buying any other brand, you are condoning the pollution that Dove has identified in the old order, and to support the new order, you must therefore buy Dove. In another chat-room posting, one user hypothesized that “If everyone began to support Dove…by buying their products, other companies will begin…to [advertise] by using REAL people and…that will help women…to believe that they are beautiful” (Amy, 2006). These users have adopted the frame of acceptance for their world provided by Dove’s “Campaign for Real Beauty.”

The views portrayed by these users underscore the values that Dove’s campaign has purveyed. In addition to the democratic values discussed earlier, Dove’s campaign purveys the value of social responsibility. Therefore, using Dove signifies that you also uphold these values, and in Dove’s narrative, this makes you socially responsible and actively engaged in a democratic process of change. Because we accept the ideals purveyed by Dove, we accept their dramatization of the guilt-redemption cycle as true.

On the surface, Dove’s “Campaign for Real Beauty” seems to be a revolutionary new form of advertising. The idea of condemning beauty industry advertisements with more beauty industry advertisements seems illogical. However, in light of Kenneth Burke’s guilt-redemption cycle, we are able to see why Dove’s campaign is an effective form of motivation. With this in mind, Dove’s campaign seems less revolutionary as an advertising campaign and more conventional as a piece of rhetoric that adheres well to the processes in Kenneth Burke’s guilt-redemption cycle.

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Bibliography

Amy. “Re: Self Esteem Forum.” Online Posting. 24 April 2006. Campaign for Real Beauty Forum. 24 April 2006.
“Dove.” Campaign 9 Dec. 2005: 45.
Durbin, Daniel. Class Lecture. University of Southern California, Los Angeles. 28 March 2006.
Ectoff, Nancy, et al. “THE REAL TRUTH ABOUT BEAUTY: A Global Report.” Campaignforrealbeauty.com. 2006. Unilever. Sept. 2004.
Empress. “Re: Self Esteem Forum.” Online Posting. 21 April 2006. Campaign for Real Beauty Forum. 24 April 2006.
jaena. “Re: Self Esteem Forum.” Online Posting. 24 April 2006. Campaign for Real Beauty Forum. 24 April 2006.
Stevenson, Seth. “When Tush Comes to Dove.” Slate.com. 2006. Washingtonpost.Newsweek Interactive Co. LLC. 1 Aug. 2005.
Wasserman, Todd. “Getting Comfy In Their Skin.” Brandweek 46.46 (2005): 16-17.
“What you say: Which ads were winners in the Super Bowl?” Advertising Age 13 Feb. 2006: 4.

The Constrained Court Debate in light of the University of Michigan Lawsuits

How strong is the American judiciary branch? The United Sates’ court system has famously produced societal changing policy through landmark decisions, such as Brown v. Board of Education and Roe v. Wade, but is societal change always the case and under what conditions is this kind of change possible or likely? Such questions can be answered in light of the debate between those who hold a constrained court view and those who hold a dynamic court view.

A constrained court view sees the judiciary branch as an unlikely venue for producing social change due to doctrinal, institutional and cultural constraints that limit the court in creating and enforcing policy. On the other hand, a dynamic court view recognizes that such constraints exist, but argues that they play a limited role in restricting the courts, thus allowing the judiciary branch to be a producer of social change.

Doctrinal constraints on the courts arise from statutes, court decisions, and administrative regulations and place limits on both judicial power and judicial coercion. A limit on a court’s judicial power is the justiciability doctrine, which determines what cases a court can hear. A constraint on judicial coercion is a limit on the court’s ability to implement a decision, such as a cap on punitive damages or minimums on sentencing.

Institutional constraints are limits on the courts that arise from the way that they are internally organized (internal constraints) or the way that they interact with other political actors (external constraints). As in doctrinal constraints, there are limits on the judicial power and coercion that are based on the court’s structure. Another internal constraint is that the courts are internally fragmented, which can make consistency difficult in lower court rulings creating an inefficient system when compared to a more bureaucratic structure with a top-down chain of command. External constraints include interference from other branches, such as overrides, and the appointment power of officials which can be a gateway for outside control over court decisions.

Cultural constraints are limits on the courts that arise from public and elite opinion. Since courts lack the means for coercion, decisions must be made to fit in to the cultural context of society so that they can be implemented. Decisions outside of this accepted arena risk reluctance and resistance by the public or targeted subculture and risk not being implemented, thus constraining the courts.

While the constrained court view would see these limits as significant in hampering the court’s ability to produce social change, a dynamic court view sees them as minimized constraints that the courts can overcome. Doctrinal constraints can be minimized when the law is vague. Internal institutional constraints can be overcome by the large amount of cases brought to the courts by both first time plaintiffs and experienced plaintiffs (or those backed by interest groups). Cultural constraints can be overcome by appealing the decision to the underlying shared values among the public or targeted subculture.

For courts to be dynamic, they must overcome enough of their constraints to allow them to enact change. The lawsuits against the University of Michigan (Gratz v. Bollinger and Grutter v. Bollinger) illustrate an instance in which the courts were unable to overcome their constraints and enact social change. The courts were constrained because of the fragmentation of the courts, the strong elite opinion, and the strong signals from the executive branch which lead to an imprecise decision from the courts, thus making it difficult for the resultant policy to enact change. While the courts were able to overcome some constraints in an effort to be dynamic, particularly with their freedom with the interpretation of doctrine and past decisions and the role of entrepreneurial lawyers and interests groups in enforcing court decisions, they were still ultimately unable to enact change.

In the fall of 1995, Jennifer Gratz (a Caucasian) was denied undergraduate admission to the University of Michigan’s Ann Arbor campus, despite being a “well qualified” applicant (Gratz v. Bollinger, 2003). In 1997, Patrick Hamacher (a Caucasian) was also denied admission and joined Gratz in filing a class action law suit against the university and the two presidents at the time of their denial, including Lee Bollinger. The suit alleged that the university’s use of racial preference in admissions decisions violated the equal protection clause of the Fourteenth Amendment and a provision of Title VI of the Civil Rights Act of 1964 (42 U.S.C. of 1981 [Equal rights under the law]) (Gratz v. Bollinger, 2003).

One of the factors in the university’s admissions decisions was race, particularly that of an “‘underrepresented minority,’” which the university considered to be African-Americans, Hispanics, and Native Americans (Gratz v. Bollinger, 2003). Though the university had changed its written guidelines for admission a number of times during the period relevant to the case, it is undisputed that under each of the guidelines, “virtually every qualified (‘underrepresented minority’) applicant” was admitted (Gratz v. Bollinger, 2003). At the time of the litigation, the university allotted points for various factors, such as SAT scores, and 20 points were allotted to each ‘underrepresented minority’ applicant which counted towards a total of the 100 points that were needed to guarantee admission (Gratz v. Bollinger, 2003).

In 2000, the 6th District Court of Appeals found that the system used when Gratz was denied admission in 1995 was illegal, but that the revised system (of allotting 20 points for race) was acceptable (Gratz v. Bollinger, 2003). However, at the same time, Grutter v. Bollinger, another case between a denied Caucasian applicant and the University of Michigan’s Law School, was found to be illegal (Grutter v. Bollinger, 2003). In April of 2003, the two cases were argued together in front of the Supreme Court.

The Supreme Court found in a 6-3 decision in Gratz that the university’s undergraduate admission policy violated the equal protection clause of the Fourteenth Amendment and the provision of Title VI of the Civil Rights Act of 1964 (Gratz v. Bollinger, 2003). It was found that the point-based system did not give the “individualized consideration” to each applicant that is needed to justify the use of race in achieving a compelling interest in educational diversity (Gratz v. Bollinger, 2003). The Supreme Court’s rejecting of the point system was based on their interpretation of it to amounting to be a use of quotas (reaffirming a previous decision in Regents of University of California v. Bakke), thus making it unconstitutional to prefer members of a particular race in seeking a racial proportion or some set number of minorities in an institution (Gratz v. Bollinger, 2003). However, in a 5-4 decision in Grutter, the court found that the use diversity constituted a “compelling state interest”, thus making the use of race allowed, under the condition that the use of race is narrowly tailored, individualized, and not confined to a quota (Grutter v. Bollinger, 2003).
In viewing the courts as dynamic, one would still recognize that there are constraints on the courts, but that these constraints ultimately do not prevent the court from enacting change. In analyzing the University of Michigan lawsuits, one may argue that the courts were able to overcome doctrinal and institutional constraints to successfully enact social change. Common gateways for dynamism in the courts are ambiguous or vague statutes, such as the 14th Amendment’s equal protection clause. In Gratz and Grutter, the claims were over an alleged violation of this specific clause of the 14th Amendment that states, “no State shall…deny to any person within its jurisdiction the equal protection of the laws” (sec. 1). However, the interpretation of this clause as a base for legal action in race-related cases is well established and the more dynamic interpretation comes from the Supreme Court’s interpretation of a previous decision in Regents of University of California v. Bakke, 1978.

At first, the Supreme Court’s reference to Bakke appears to be a strict interpretation of a previous court decision that “ruled out a racial quota or setaside, in which race was the sole fact of eligibility for certain places in a class” (Gratz v. Bollinger, 2003). However, the Supreme Court in Gratz and Grutter was free to interpret whether the race-conscious systems used in these cases acted as a racial “quota” or was the “sole fact of eligibility” for the admissions decisions (Gratz v. Bollinger, 2003). In Gratz, the Supreme Court found that the university’s current race-conscious admissions policy violated the precedent set forth in Bakke by acting as a quota. However, the Supreme Court was able to choose that interpretation, for the opposite argument was made by the lower court in Gratz which held that the university’s current admission policy did not “operate as the functional equivalent of a quota” (Gratz v. Bollinger, 2003). Furthermore, Supreme Court Justices Souter and Ginsburg explained in their dissent that the admission policy “does not describe a system with a quota like the one struck down in Bakke” (Gratz v. Bollinger, 2003). Such a freedom allowed to the court in interpreting doctrine allowed for the court to be dynamic by choosing the interpretation that best fitted their goals.

It can also be argued that the courts overcame the institutional constraint of the court’s passivity in the University of Michigan lawsuits. While the Supreme Court had to rely upon someone to file a lawsuit in this policy area before they could address it, they also had the help of interest groups who actively sought out plaintiffs who would be willing to bring such a case to the court. Furthermore, the Supreme Court was able to choose not just one, but two cases in this policy area to address simultaneously to make a greater statement.

Even members of other branches recognized the potential for the courts to form a policy on affirmative action. According to Kenneth Jost in an article in the CQ Researcher, a Republican state legislator, Rep Deborah Whyman, conducted a hearing to “solicit unsuccessful applicants to challenge the university’s admission system” (2001). These replies were then sent to the Center for Individual Rights, a conservative public-interest law firm, who chose Gratz as one of the plaintiffs to represent a class-action lawsuit. (The center also filed the Grutter suit). Thus, the limit placed on the court’s power by its passivity was minimized by interest groups who actively sought for the right cases to bring to the court.

Likewise, the limit on judicial coercion is minimized by interest groups who assist the court in enforcing its decision. The American Civil Rights Institute and the Center for Equal Opportunity, who both oppose affirmative action, have contacted colleges since the University of Michigan decisions in regards to their race-exclusive scholarships, fellowships, and other programs. According to Peter Schmidt in The Chronicle of Higher Education, “about half of the colleges contacted by the groups have opened their programs” (2003). Despite the limit on the court’s ability to enforce their decisions, interest groups have stepped in to fill the void.
While these minimized doctrinal and institutional constraints provided the potential avenues for the court to be dynamic, other constraints of the court could not be overcome. The internal institutional constraint of the fragmentation of the courts is one such constraint. The fragmented courts made different decisions along the way, finding the admissions policies at some times violating the 14th Amendment and other times not. This is in part due to the vagueness of the doctrine, as discussed earlier, which allowed the cases to be open to different interpretations. While the Supreme Court’s decision on the issue is meant to provide a final, definitive answer to the conflict, it fails to clarify it.

Soon after the decision, a report published in The Hispanic Outlook in Higher Education found that “the decisions provide some guidance, but not necessarily a clear prescription” (Hixson, 2003). On the one side, affirmative action seems to be encouraged with the decision in Grutter, which provides a justification for affirmative action as a “compelling state interest” (Grutter v. Bollinger, 2003). At the same time however, the decision in Gratz, by only providing an example of what can’t be done, makes it difficult for universities to know what methods they can safely use without the fear of litigation. Not only is the resulting policy confusing, but the fragmented courts can come back to haunt the issue once again. According to the report in The Hispanic Outlook in Higher Education, the resolution of future lawsuits would “depend on how the various courts apply the standards in Grutter and Gratz to particular facts” (Hixson, 2003). In short, clarification of the issue was not achieved due to this constraint of the courts.

The resulting unclear policy left by the courts in the University of Michigan lawsuits only begs the question of why the Supreme Court would chose to produce such a decision. The answer, perhaps, can be explained by the external institutional and cultural constraints of the case. The public opinion, much like the Supreme Court Justices, was divided on the issue of affirmative action. According to a poll taken in June of 2003, 49% surveyed “generally favor…affirmative action programs” while 43% “generally…oppose” them (Gallup, 2003). However, the elite opinion on this issue was much more biased. Many amicus curiae (friend of the court briefs) were filed on behalf of the University of Michigan in both Gratz and Grutter from Fortune 500 Companies, General Motors, the Attorney General of both Michigan and Ohio, and the American Council on Education among many others (Docket for 02-516, 2006). According to an article in the New York Times, “a record number” of 102 briefs were filed in both cases (Greenhouse, 2003).

However, amidst overwhelming elite opinion urging for the support of affirmative action, President George W. Bush’s administration filed a brief on behalf of the plaintiffs, Gratz and Grutter, condemning the admissions policies of the University of Michigan as “fundamentally flawed” and representative of a “quota” type system, thus providing a clear signal to the court as to what policy the executive branch desired as the outcome (Bush, 2003). So, with a strong signal from the executive branch to find the admission policies as “unconstitutional” and an overwhelming elite opinion to uphold racial diversity as a “compelling government interest” the Supreme court essentially listened in making its rulings in Gratz and Grutter (Bush, 2003; Steelcase INC. et al, 2000).

The resulting mixed-message of the Supreme Court’s decision reflects a compromise between the elite opinion supporting affirmative action in general and the executive branch’s intervention supporting the specific claim that the methods used by the University of Michigan in admissions were illegal. This compromise contributed to the unclear policy that the Supreme Court’s decisions in these cases established. So, with some constraints overcome and others not, how can it be determined whether the courts in the University of Michigan lawsuits were constrained or dynamic?
This question can be answered by looking at the changes brought on by the rulings in these lawsuits. In Gratz, the ruling that found its point-based system unconstitutional effectively enacted a change in academia by forcing schools with similar admissions policies to alter them. In the semester following the decisions, both Ohio State University and the University of Massachusetts at Amherst dropped their point-based undergraduate admissions policies (Schmidt, 2003). However, this change occurred in schools that already had admissions policies similar to that of the University of Michigan’s undergraduate school and we must also consider what the significance is of changing just the details in the admissions policies at only a handful of universities. In considering the effects of change, we must also look at the change enacted by the broader policy set out by the courts.

The issue at hand in the University of Michigan lawsuits is affirmative action and whether it is needed for minorities to gain access to higher education or if it makes it more difficult for non-minorities to gain access (Jost, 2001). Therefore, the extent of change brought on by the policy set forth by the Supreme Court’s decision can be analyzed by the changes in underrepresented minority admissions rates. At the University of Michigan’s undergraduate school, between the decisions of the university’s lawsuits in 2003 until 2005, the percentage of new freshmen admitted that were African-American, Hispanic, and Native American increased by 0.6% and the percentage of Caucasians increased by 0.2% (University of Michigan, 2006). These statistics demonstrates that the policy on affirmative action put out by the Supreme Court did not significantly change the admission rates of underrepresented minorities or of Caucasians at the University of Michigan. Furthermore, the percentage of African-American and Hispanic college enrollment rates hardly changed with a 0.2% increase and a 0.3% decrease respectively between 1998 and 2004 showing little significant change in the broader application of the Supreme Court’s policy as well (National Center for Educational Statistics, 2006).

The minimal effect of change from the Supreme Court’s policy is best expressed by Justice Ginsburg in her dissent, “If honesty is the best policy, surely Michigan’s accurately described, fully disclosed affirmative action program is preferable to achieving similar numbers though winks, nods, and disguises” (Gratz v. Bollinger, 2003). As Chief Justice Rehnquist points out, her statement “suggest[s] that universities…will pursue their affirmative-action programs whether or not they violate the United Sates Constitution” and underlines the weakness that Justice Ginsburg sees in their inability to overcome constraints to enact change (Gratz v. Bollinger, 2003).

While the courts in the University of Michigan lawsuits were constrained in producing change, I agree with Gerald Rosenberg that it is still important to examine “when, and under what conditions, courts can produce significant social reform” (Rosenberg, 1991). The constrained court view argues that courts are unlikely to produce social change, leaving open the possibility for courts to be dynamic. The more united that the judiciary branch is in its ideology or intentions for policy, the more likely it is to overcome its constraints by producing consistent rulings or producing a more definitive statement on affirmative action from the courts. However, such unity is difficult given a fragmented system. More importantly, unclear rulings from the court are not enough in themselves to constrict the court’s ability to make policy. In the case of the University of Michigan lawsuits, strong elite opinion also contributed to the divisiveness of the court which lead to the unclear policy on affirmative action put out by the court, hindering its ability to produce change. With strong and divided opinions, both within the judiciary branch and without, the clear and definitive policy statement that was needed to enact social change could not be produced. Such were the circumstances in the University of Michigan lawsuits that constrained the court’s ability to produce social change and from this, we can hypothesize that these circumstances are likely to constraints courts in the future.