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Affirmative Action in Admissions Reaches the Supreme Court


Wednesday, Dec. 04, 2002

On Monday, December 2, the Supreme Court granted certiorari in Grutter v. Bollinger, the University of Michigan law school and undergraduate affirmative action cases. The question of racial preferences in the schools is important and controversial. Whatever one believes to be the "right answer" on the merits, the issue deserves the Court's full and careful consideration, not the jerking of knees in one direction or the other.

Flawed Opponents

Those who strongly oppose affirmative action characteristically refer to the practice as "reverse discrimination" and challenge its legitimacy as a matter of fairness and justice. The argument is not, on its face, untenable: some deserving applicants may indeed face rejection as a result of affirmative action policies.

Those who favor the practice find it easy to dismiss reverse discrimination arguments, however, because those who press them tend to be oblivious to virtually every other kind of discrimination and injustice in our society. One rarely sees the strong opponent of affirmative action, for example, up in arms about the deliberate and continuing exclusion of women and minorities from some privileged (and not-so-privileged) positions.

Furthermore, vociferous critics of affirmative action typically see it even when it is not there, especially when the critic himself has been passed over for a job or a promotion. A "merit" system is apparently one in which he is ultimately victorious.

The argument about reverse discrimination, then, suffers from association with people whose motives are self-serving.

Flawed Defenders

Meanwhile, strong proponents of affirmative action in education often suffer from a different set of ills. They can be subject to a self-righteous and grandiose self-perception that precludes an ability to see that they are sometimes guilty of the very bigotry of which they accuse others.

Such individuals, for example, will treat any opposition to affirmative action as morally equivalent to support for Jim Crow laws that preceded the Civil Rights Acts of the last century. Such people feel betrayed by Clarence Thomas, for instance, because they believe that as a beneficiary of affirmative action, he owes his support to the cause.

Around such people, one voices even the most sincere ambivalence about affirmative action at one's peril.

The dismissiveness of some affirmative action proponents is counterproductive. The embattled left that uncritically embraces affirmative action sometimes seems to believe that the practice is an unmitigated and inherent good that should continue forever. As a result, the notion of affirmative action as a means of creating true equality of opportunity - a means that could theoretically be replaced by some alternative means - can easily get lost.

In the Beginning: Bakke

Part of what accounts for the unappealing rigidity on both sides of the political spectrum is the manner in which the Supreme Court first approached affirmative action in higher education.

The famous case of University of California Regents v. Bakke arose when Allan Bakke applied for admission to the Medical School of the University of California at Davis. Though his credentials were impressive, Bakke was rejected. He subsequently argued reverse discrimination, claiming that if he had been black, the Medical School would surely have admitted him.

The University of California defended its rejection of Bakke on the ground that admitting a particular percentage of minority students was important. Such racial set-asides would ensure that, among other things, black doctors would graduate and provide medical care to under-served minority communities in California.

The Supreme Court was not convinced. A majority invalidated the California affirmative action program as illegal race discrimination in violation of Title VI of the Civil Rights Act (and therefore, given subsequent precedents, of the Equal Protection Clause of the Fourteenth Amendment as well).

Only the actual judgment, striking down the Davis program, attracted a majority of the Supreme Court. The Justices divided on the question of whether affirmative action in education could ever be legal.

Four believed that the answer to this question was no. Affirmative action, for them, was no less invidious than traditional race discrimination against disadvantaged minorities.

The late Justice Lewis F. Powell, however, the man who cast the deciding vote against the Davis plan, believed otherwise.

Justice Powell was comfortable with the "Harvard Plan," distinct in two respects from the Davis program. First, Harvard did not have a separate admissions track for minority students or a "quota" that was supposed to be filled, while Davis did. Second, Harvard recruited minority students to increase the "diversity" of the student body, not to achieve a social justice aim, as Davis had tried to do.

At Harvard, membership in a minority group was a plus factor. Harvard could accordingly admit different numbers of minority students each year, depending in large part on objective qualifications. Racial diversity would count in a candidate's favor, in the same sort of way that living in a part of the country that ordinarily sends few people to Harvard would.

The Problem with Neutrality

Because Justice Powell selected racial diversity as the one and only legitimate predicate for educational affirmative action, it is hardly surprising that all universities wishing to continue to recruit large numbers of minorities promptly began to use the language of diversity.

It is hard to know exactly what Justice Powell liked so much about the Harvard Plan. He may have viewed as invidious the assumption that black people admitted to medical school would later serve black communities in greater numbers than their white counterparts. This may have struck him as unfair racial stereotyping (however accurate). Diversity seemed a more neutral basis on which to premise a minority preference program.

The neutrality of diversity as a rationale, however, is precisely what is wrong with it. After all, if we leave aside social justice and the importance of giving educational access to traditionally excluded groups, then diversity could justify preferences for white students.

Suppose a particular school is located in a very poor area. Assume that the majority of the population in that area is minority. A white student who does not perform as well as competing minority applicants could find himself admitted to that school by virtue of his whiteness.

Because diversity is unhinged from notions of social justice, in other words, it need not keep faith with such notions either.

In one example of perverse diversity in education, the University of Georgia at Athens chose to give a sizable preference in admission to men over women, because the male applicants' credentials were insufficient alone to achieve gender balance. A district judge declared the practice illegal, saying that "[t]he desire to 'help out' men who are not earning baccalaureate degrees in the same numbers as women ... is far from persuasive." But on a pure diversity rationale, the program made sense: at that school, men added diversity.

In addition to opening the door to invidious discrimination, the diversity rationale risks diminishing the moral significance of racial integration, by placing it in the same category as other types of enrichment programs for Harvard students. Though diversity of all sorts is desirable in the academy, achieving racial integration is a qualitatively distinct objective that arises uniquely from a history of slavery and persecution of African-Americans in this country. In this sense, it is completely unlike geographic diversity, and we should admit and honor that.

The goal of recruiting black students to a prestigious California medical school is different in kind from the goal of recruiting people from the Southeast to balance the Southwestern population of Davis. And conversely, a school filled exclusively with California residents would not raise the same sorts of concerns as a school filled exclusively with white people.

Yet the paradigm of diversity wholly fails to capture such distinctions.

No Guidance

The Bakke doctrine, built - as it is - around diversity, provides little guidance for the practice of affirmative action in education. Perhaps as a result, those on the left who strongly support preferences and view them as a moral imperative often use the word "diversity" as a synonym for race-conscious redistribution of educational benefits.

Those on the right, who strongly oppose such programs, similarly scoff at the notion that minority students add needed diversity to the student body and propose that if the left were truly serious about "diversity," it would (as it frankly should) seek to recruit people of different ideological viewpoints and scholarly traditions.

The difficult questions that went unaddressed in Bakke therefore remain to be considered and decided by the current Supreme Court. What are the consequences of utilizing a minority candidate's race as a criterion for admission to college or professional school? Are they truly comparable to those of excluding a minority candidate because of his race?

Are there viable alternative strategies for achieving a racially integrated class, and are these strategies as effective as affirmative action? And perhaps most importantly, if there are no real alternatives, is our Supreme Court prepared to abolish the only existing means of achieving educational integration and to do so as a mandate of the Post-Civil-War Fourteenth Amendment Equal Protection Clause?

Perhaps we shall soon find out.

Sherry F. Colb, a FindLaw columnist, is a Professor at Rutgers Law School in Newark.

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