From a Perspective on Equal Protection Examining the Constitutionality of the Aboriginal-Favored University Entrance Provisions in Taiwan: The Affirmative Action and Multiculturalism Approaches

• Main Authors: Chih-Chiang Hsi, 席致強
• Other Authors: none
• Format: Others
• Language: zh-TW
• Published: 2010
• Online Access: http://ndltd.ncl.edu.tw/handle/79860456560387533795

碩士 === 國立高雄大學 === 法律學系碩士班 === 98 === In order to protect the matriculation and education opportunities of aboriginal students in high school and higher education thereof, the Ministry of Education is consequently authorized to conclude aboriginal-favored university entrance provisions and government scholarship to study abroad for aboriginal students by the 16th stipulation of present Aboriginal Education Statute. The section 1, paragraph 4, chapter 1, article 3 of present Schemes for aboriginal-favored university entrance provisions and government scholarship to study abroad for aboriginal students has clearly stipulated the regulations for their college entrance examination preferential treatment. However, the classification criterion of above stipulation is by races, and there are different treatments for aboriginal and non aboriginal person, which means that the preferential treatment of college entrance examination is principally for aboriginal students not for non aboriginal students (if they do not have other entrance examination preferential status). Then what are the specific problems of this stipulation and whether it conflict with the idea and meaning of the constitutional protected human rights are prudential questions worthy of further study. Therefore, this thesis attempts to study the problems that may derived from the present aboriginal-favored university entrance provisions in Taiwan and responding strategies thereof from a perspective on constitutional equal protection by the affirmative action and multiculturalism approaches. To this, the basic construction of this thesis is as follows: Chapter 1, introduction, mainly expounds the origin of this study and raised questions, restricts the research scope and methods of this thesis, defines terms, translation and other issues related to this thesis, and clarify this framework firstly. Addition to describing the apprehension caused by the 16th stipulation of Aboriginal Education Statute and the 3rd article of Schemes for Aboriginal-favored University Entrance Provisions and Government Scholarship to Study Abroad for Aboriginal Students, the second chapter also respectively introduces and observes the comparison with aboriginal students and other five special students in the relevant university entrance provisions. It initially points out some problems about the present regulations of aboriginal-favored university entrance provisions (i.e. the section 1, paragraph 4, chapter 1, article 3 of present Schemes for Aboriginal-favored University Entrance Provisions and Government Scholarship to Study Abroad for Aboriginal Students), and then thoroughly explores two important concerns about the present regulations of aboriginal-favored university entrance provisions. Besides outlining the importance of cases of race-based affirmative action in education of the U.S. Federal Supreme Court, the chapter 3 explains the meaning and origin of affirmative action in U.S., and then respectively introduces the background, litigation processes, and conclusions of the four cases of race-based affirmative action in education of the U.S. Federal Supreme Court- Regent of the University of California v. Bakke, Gratz v. Bollinger, Grutter v. Bollinger, and Parents Involved in Community Schools v. Seattle School District No.1. It also introduces court opinions of these cases and the concurring opinions or dissenting opinions about the strategy of admission programs. Afterwards, it clarifies that how we can learn from the above cases of affirmative action of the U.S. Federal Supreme Court. Addition to outlining the reason why the distinction between national minorities and immigrate groups of Will Kymlicka’s theory of multiculturalism is the focus of this chapter, chapter 4 introduces the theoretical position of Kymlicka’s theory of multiculturalism in western political philosophy field and the purposes of this theory. It respectively illustrates that the major differences between national minorities and immigrate groups is the significant difference of the relationship occurred with the mainstream society, societal culture, and group-differentiated rights. It then explains how the above part of Kymlicka’s Multiculturalism inspires the review of the present aboriginal-favored university entrance provisions in Taiwan. Besides outlining the necessity of constitutional judicial review of aboriginal-favored university entrance provisions, chapter 5 briefly describes that the affirmative action of Judicial Yuan Interpretation NO.649 have been examined. It then performs the constitutional judicial review of the present aboriginal-favored university entrance provisions in Taiwan, which includes what human rights of what person is violated by the aboriginal-favored university entrance provisions in Taiwan and the analysis of the formal constitutionality and substantial constitutionality. After analysis, this thesis will propose an aboriginal-favored university entrance provision which corresponds with constitution. Finally, the conclusion and recommendations are proposed in chapter 6.