The Legal Justification for Racial Affirmative Action on the Ground of Multiculturalism: Focus on the Preferential Treatment for Aboriginal Student''s Admission to Higher Education in Taiwan

• Main Authors: Yu-Yin Tu, 涂予尹
• Other Authors: Tzu-Yi Lin
• Format: Others
• Language: zh-TW
• Published: 2014
• Online Access: http://ndltd.ncl.edu.tw/handle/9n634e

博士 === 國立臺灣大學 === 法律學研究所 === 102 === The preferential treatment for aboriginal students’ admission to higher education is one of the most enduring yet controversial educational policies in Taiwan. Although the government has carried out preferential treatment programs for aboriginal students in the light of educational preferential treatments for frontier students since the KMT’s reign, it just formally legalized these programs for less than 30 years. The Amending of the Constitution in mid-1990s and the following promulgation of Aboriginal Education Act pushed the government to transform its basic attitude toward these programs, from taking the preferential treatments as part of colonizing strategies to standing on the position of aboriginals. The requirements to preferential treatments were further specified and linked to the cultural/ linguistic proficiency test. One the one hand, the preferential treatment is to compensate past discrimination suffered by the aboriginals. On the other hand, the linkage between preferential treatments for aboriginal students’ entering into higher education and cultural/ linguistic proficiency test is also designed to protect cultural diversity as well as promote sustainable development of aboriginal cultures and languages. There is a key yet not fully deliberated factor hidden behind the transformation of aboriginal students’ preferential treatments for higher education, the promulgation of Article 10, Section 11 of the Amendment to the Constitution, which affirms the value of cultural diversity. Therefore, in addition to Article 7 of the Constitution, the above article should also be taken into consideration in assessing the legitimacy of aboriginal students’ preferential treatments for higher education. However, how to properly interpret the meaning of “cultural diversity affirmation” clause remains unclear. The goal of this dissertation is to clarify the meaning of Article 10, Section 11 of the Amendment to the Constitution by analyzing relevant theories of multiculturalism on the one hand, and assess the legitimacy issues of aboriginal students’ preferential treatments for higher education on the other. In addition to explain the motive, scope, main references, approach, and key issues of this dissertation on chapter 1, I analyzed current legal institution, history and main issues of the preferential treatment for aboriginal students’ entering into higher education on chapter 2. On chapter 3, I discussed relevant cases decided by the Supreme Court of the U.S., analyzed the issues faced and approached taken by the Court as a reflection and reference of issues in Taiwan. Then, on chapter 4, I illustrate the origin of multiculturalism by introducing communitarian key criticism of traditional liberalism, generalize main schools of multiculturalism, and explain the reason why I take multiculturalism as an approach to analyze the legitimacy of preferential treatment for aboriginal students’ entering into higher education in Taiwan. In the following, I introduced 3 main schools of multiculturalism, politics of recognition by Charles Taylor, politics of difference by Iris Marion Young, and liberal multiculturalism by Will Kymlicka, as well as primary criticism, their responses, and their standpoints of preferential treatments for aboriginal students’ entering into higher education in Taiwan on chapter 5 to 7 respectively. On chapter 8, I sum up several commonalities of above 3 main schools of multiculturalism, criticism they received from liberals, and their ideas of accommodating collective right within the individual right-oriented basic right institution in modern constitutional states. On chapter 9, I made some conclusions as legal advices for how we revise the current preferential treatment institution in the next step.