I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin, but by the content of their character.
—Martin Luther King
The United States Supreme Court will soon hand down its highly anticipated ruling on Fisher v. University of Texas. The explosive case involves the question, “Does race-based admissions at universities violate the Fourteenth Amendment of the Constitution?”
The relevant clause reads: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States ... nor deny to any person within its jurisdiction the equal protection of the laws.” The Equal Protection Clause is widely interpreted as banning discrimination by both the states and the federal government.
Nevertheless, in Grutter v. Bollinger (2003), a split Supreme Court upheld a university's limited “right” to consider race as a factor in admissions in order to create diversity. At the same time, a split Supreme Court in Gratz v. Bollinger found that the university’s more restrictive admissions policy for undergraduates was a quota system and unconstitutional. In short, past Supreme Court rulings are confusing and display a divided court.
The petitioner in Fisher v. University of Texas is Abigail Fisher. The white Texas resident was refused admission to the University of Texas at Austin in 2008. She sued for racial discrimination on the grounds that minority students with allegedly fewer credentials had been admitted. After the usual tortuous legal path, the Supreme Court accepted the case. Fisher asked the Supremes to find that the admissions policy is inconsistent with the limitations in Grutter to overturn Grutter entirely. The latter could possibly end affirmative action admission policies at public universities.
The university's main argument is that the admission process is not race-based but “holistic” in that race is one of several factors being considered. In a Polymic article (June 20, 2013) titled “Affirmative Action: If You Care About Ending Racism, Work to End Race-Conscious College Admission,” University of Texas senior Danny Zeng replied, “This logic is equivalent to a professor grading you on participation where ‘attendance’ is only one of the many factors being considered for your grade. Try skipping a few classes and see if non-attendance makes a dent on your final participation grade! Attendance is as integral to participation in that case as race is to a race-conscious admission policy. To dilute the fact is to dodge the issue.”
The stakes are high, as are the emotions, with both sides crying “racism!”
Defining the General Debate
Affirmative action policies began in the 1960s under President Lyndon Johnson and have expanded dramatically since. The intent was to remedy or prevent discrimination on the basis of "color, religion, sex, or national origin,” especially in education and employment. A de facto legal mandate now exists on the federal level and within most states to implement some form of affirmative action in education and employment. The policies are sometimes legislated. At other times, they are given the force of law through administrative regulations or judicial rulings. To receive tax money, for example, a university must abide by administrative policies dictated by government.
Advocates generally argue in one of three ways.
First, society and education benefit from the inclusion of minorities, and diversity should be encouraged. This argument is probably valid. But mandatory diversity assumes a highly debatable view of “social good.” Similar to a forced redistribution of money, affirmative action is a forced redistribution of opportunity and power from one individual to another based upon their race or gender. In a free market, all parties benefit from voluntary exchanges; under affirmative action, one party benefits at the expense of another through involuntary “exchanges.” It is difficult to understand how half a century of advancing people based on skin color or genitalia rather than merit can benefit that society. It seems to be a formula for creating racial and sexual conflict.
Second, historical wrongs, such as slavery, should be redressed by providing a “level playing field” for disadvantaged minorities. Whites owe compensatory justice to minorities. Compensatory justice traditionally means that anyone who causes injury to another should remedy it. By contrast, affirmative action addresses classes of people and seeks remedy for descendants of the injured from descendants of those who may have inflicted injury. But the penalized descendants have done no harm; they were not born. Many ancestors were not even in America during the slave days; for example, a flood of starving Irish poured into the United States around the time of the Civil War.
Third, the American ideal of equality is invoked. But affirmative action expresses a dramatically different version of equality than the familiar one of every individual being equal before the law. The affirmative action version argues for education and employment to reflect the population. If women are 51 percent, then 51 percent of university students should be women. A lower percentage becomes prima facie evidence of discrimination and inequality; thus women applicants need to receive preferential treatment to achieve equality. This turns equality into a system of embedded privilege and quotas based on race and gender. The traditional ideal becomes the first casualty of affirmative action.
Some opponents of affirmative action ethically agree with points made by advocates, but they reject the use of law or its equivalent to enforce them.
Other opponents flatly disagree with the goals and claims of affirmative action. They refer to the goals as “reverse discrimination” and claim that they harm minorities, not help them. In a Wall Street Journal article (Oct. 4, 2012), Director for the Center of Individual Rights Gerald Walpin expanded on this view:
Opponents also dispute the claims of affirmative action. For example, to counter the claim that the policy provides better educational opportunities for minorities, they point to a rise in black graduation rates in University of California schools after the passage of an anti-affirmative action measure.
Voter and court wars over affirmative action have raged since 1996, when voters narrowly approved a California ballot proposition to amend the state constitution. Proposition 209 prohibited public institutions from using sex, race, or ethnicity in considering admission to a state university. Advocates of affirmative action ran to federal court, and the enforcement of Prop. 209 was blocked in the same month it passed. The 9th Circuit Court of Appeals overturned the ruling. Subsequent court challenges have shared a similar fate.
In 2006, Michigan passed a similar amendment, and a tennis game of court challenges ensued. Affirmative action opponents finally appealed to the Supreme Court, which accepted the case but has yet to rule.
With Fisher, the Supreme Court has an opportunity to ease the culture war by ending the policies of racial preference within academia. Nevertheless, the Court is renowned for ruling on technicalities, especially in controversial cases.
There are reasons to be hopeful, nevertheless. This is not the same court that heard Grutter. It is headed by Chief Justice John Roberts, who stated in a 2007 opinion, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” Sandra Day O'Connor, who wrote the majority opinion in Grutter, has been replaced by the conservative Justice Samuel Alito. Left-leaning judge Elena Kagan has recused herself due to a prior involvement.