As 2016 Oscar night steadily approaches, pundits make their predictions about who will take home the highly coveted golden statuette. While it’s unclear which film will take home the award for Best Picture or whether seasoned actor Leonard DiCaprio will finally win a statuette, one thing is for certain: the Oscars this year will apparently be very, very white. Ever since nominations were announced last month, the Academy Awards’ diversity, or lack thereof, has been a topic of much discussion and debate. For the second consecutive year, only white actors and actresses were among those nominated in the top four acting categories. The Academy of Motion Pictures’ failure to recognize the work of minority actors has been met with staunch criticism, calls to boycott, and the resurgence of the social media hashtag #OscarsSoWhite.

The Academy responded by instituting a number of policies aimed at increasing diversity at the high-profile awards show in the future. In addition to revising its membership requirements, the board of governors committed to doubling the number of women and diverse members of the Academy by 2020. In an effort to improve diversity in the immediate future, the Academy has decided to add three “new members who are not Governors to its executive and board committees where key decisions about membership and governance are made.”

While the Academy’s steps to increase diversity are unprecedented and quite commendable, these new policies have resulted in journalists and bloggers alluding to a polarizing, divisive concept, characterized by what has become two dirty words: affirmative action. Since there have been a number of opinion pieces written on the Academy’s new “coercive affirmative action” policies, it felt necessary and appropriate to scrutinize these new policies under the same lens with which a Court would review any other initiative aimed at increasing minority representation and promoting diversity.

Firstly, unless the Academy decides to institute explicit racial quotas for future members or for its three new seats on its Board of Governors, there isn’t a 14th Amendment issue under Grutter v. Billinger (2003). Moreover, since, according to the Constitution, affirmative action measures are subject to strict scrutiny, the Court would need to ask whether these new policies serve a compelling interest and are narrowly tailored to achieve the Academy’s objective of improving diversity. Furthermore, under Title VII of the Civil Rights Act of 1964, which prohibits both private and public sector employment discrimination, these policies would be permissible if they were deemed to be necessary to remedy a demonstrated racial imbalance and do not “unnecessarily trammel” on the interests of nonminority members.

Since the Academy of Motion Pictures is neither a public entity nor an employer, the fact that these policies would pass constitutional muster is merely fodder for those of us who like to live or occasionally vacation in the intellectual hemisphere. However, with the Supreme Court’s decision pending on the University of Texas at Austin’s use of race in admissions decisions, the Academy’s lack of diversity serves as a haunting reminder that America’s history of racial inequality is very much a part of our present, and that policies aimed at addressing such inequities are far from obsolete or unnecessary, even on the silver screen.

Alneada Biggers




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