CHAPTER SIX
ENDORSING RACISM
“You guys have been practicing discrimination for years. Now it is our turn.”
Justice Thurgood Marshall1
“Affirmative action” has been around since the 1960s. In Executive Order 10925, President John Kennedy instructed federal contractors to take “affirmative action to ensure that applicants are treated equally without regard to race, color, religion, sex, or national origin.” Several years later, President Lyndon Johnson issued Executive Order 11246, which required government contractors to take affirmative steps to “expand job opportunities for minorities.” President Richard Nixon went even further. He ordered federal agencies to set up a national Minority Business Enterprise contracting program.2 In his autobiography, Nixon wrote, “A good job is as basic and important a civil right as a good education…. I felt that the plan [Labor Secretary] George Shultz devised, which would require such [affirmative] action by law, was both necessary and right. We would not impose quotas, but would require federal contractors to show affirmative action to meet the goals of increasing minority employment.”3
The problem with affirmative action is that it invariably involves reverse discrimination. Discriminating against people because of their race is repugnant and unconstitutional. But remedying the wrong of past discrimination by inflicting new discrimination undermines the very principle of racial non-prejudice that is the professed goal of American law and public policy.
The Bakke Case
Starting in the late 1960s, educational institutions began to establish affirmative action programs designed to increase minority enrollment. The first Supreme Court decision to directly address affirmative action in education was the landmark 1978 case Regents of the University of California v. Bakke.4Bakke involved the admissions program of the University of California at Davis’s medical school. Students applying to the school had to have a minimum 2.5 grade point average, and only one in six who met that minimum standard were invited for an interview. Applicants were given a total admission score that included their overall grade point average, grade point average in science courses, graded interview score, Medical College Admission Test (MCAT) scores, and other criteria, including letters of recommendation and extracurricular activities. In 1973, a perfect score was 500 points. In 1974, it was increased to 600 points.5
There was, however, a special admissions program run by a separate admissions committee for minority group applicants, in which the 2.5 grade point average cutoff did not apply. When the medical class size was fifty, eight slots were reserved for minority candidates Both numbers were doubled in 1973.6
Allan Bakke was a white male who applied to the medical school in 1973. His combined score was 468 out of 500. His application for admission was denied because it was late in the year and the admissions program had ruled that any candidates who scored below a 470 would not be accepted.7
Bakke applied again the following year; this time, his application was early and his combined score was 549 out of 600. He was placed on the waiting list but ultimately rejected. In both years, candidates who had lower grade point averages, lower MCAT scores, and lower total combined scores than Bakke were admitted under the special admissions process.8
The issue presented to the Supreme Court in Bakke was whether the special admissions program violated the equal protection clause of the Fourteenth Amendment. The Fourteenth Amendment prohibits all state discrimination based on race, without exception. The Court has ruled that the Fourteenth Amendment protects Celtic Irishmen,9 Chinese,10 Austrian resident aliens,11 Japanese,12 and Mexican-Americans.13 It has said that “Congress was intent upon establishing in the federal law a broader principle than would have been necessary simply to meet the particular and immediate plight of the newly freed Negro slaves.”14 But what about Bakke, a white male who was denied admission to a state medical school because of a racially discriminatory policy? Wouldn’t the Fourteenth Amendment protect him?
Not necessarily, because over the years the Supreme Court has taken the clear language of the Fourteenth Amendment and twisted it into a pretzel. It has held that when a government entity makes a law that provides for a classification based on race, the law is subject to a type of judicial examination known as strict scrutiny. This is the highest level of scrutiny that a court can invoke when deciding whether a particular law is constitutional. In order to pass muster under a strict scrutiny analysis, such a law must be “narrowly tailored” to meet a “compelling government interest.”15
Laws that are subject to the strict scrutiny standard are, in most cases, overturned because the burden falls on the government to show how and why the law serves a compelling state interest. California argued that its compelling state interest in the special admissions program was to (1) increase minority representation in medicine, (2) counter racial discrimination in society, (3) increase the number of doctors in minority areas, and (4) reap the educational benefits of a more ethnically diverse student body.
Justice Lewis Powell, who wrote the opinion for the majority of the Court, dismissed the first justification, because it was “discrimination for its own sake which is prohibited by the Constitution.”16 As to the second point, Powell conceded that the state has a recognized interest in remedying past discrimination, but the “purpose of helping certain groups whom the faculty of the Davis Medical School perceived as victims of ‘societal discrimination’ does not justify a classification that imposes disadvantages upon persons like respondent [Mr. Bakke], who bear no responsibility for whatever harm the beneficiaries of the special admissions program are thought to have suffered.”17
As for the argument that minority physicians would practice in communities that are underserved, Powell concluded that the state had not demonstrated “that it must prefer members of particular ethnic groups over all other individuals in order to promote better health care delivery to deprived citizens.”18
Powell, however, found California’s final argument persuasive, at least up to a point. He wrote that because promoting a diverse student body encourages “speculation, experiment and creation” it is a constitutionally permissible goal. But he wrote that diversity “encompasses a far broader array of qualifications and characteristics of which racial or ethnic origin is but a single though important element.”19
Powell decided that since the special admissions program focused solely on ethnic diversity, it actually hindered diversity and was, therefore, unconstitutional. He wrote:
In summary, it is evident that the Davis special admissions program involves the use of an explicit racial classification never before countenanced by this Court. It tells applicants who are not Negro, Asian or Chicano that they are totally excluded from a specific percentage of the seats in an entering class. No matter how strong their qualifications, quantitative and extracurricular, including their own potential for contribution to educational diversity, they are never afforded the chance to compete with applicants from the preferred groups for the special admissions seats. At the same time, the preferred applicants have the opportunity to compete for every seat in the class.20
Consequently, the Court outlawed racial quotas, or the setting aside of a certain number of classroom seats exclusively for minorities. But proponents of affirmative action won a partial victory nevertheless, because admissions programs could in the future use racial classifications if they are narrowly tailored and are one of several factors in the attainment of a diverse student body. Although California lost, affirmative action survived.
Bakke would have significant and lasting consequences. Powell’s decision “served as the touchstone for constitutional analysis of race-conscious admission policies. Public and private universities across the Nation modeled their own admissions programs on Powell’s views.”21
In 2003, the Supreme Court again took up the issue of affirmative action in education when it decided the cases of Grutter v. Bollinger and Gratz v. Bollinger.22 The cases involved admissions programs
at the University of Michigan Law School and undergraduate school.
In Grutter, Barbara Grutter applied for admission to the law school. She had a 3.8 grade point average and a score of 161 out of 180 on the Law School Admission Test (LSAT). Grutter was initially placed on a waiting list for admission but her application was subsequently rejected. She challenged the law school’s admission policy, alleging that she was discriminated against because she was white.
The law school’s admissions procedures bore the stamp of the Bakke decision, referring “to the educational benefits that diversity is designed to produce.”23 The former dean of admissions “testified that he did not direct his staff to admit a particular percentage or number of minority students, but rather to consider an applicant’s race along with all other factors.”24 He also “testified that at the height of the admissions season, he would frequently consult the so-called ‘daily reports’ that kept track of the racial and ethnic composition of the class.”25 He said he sought “to ensure that a critical mass of underrepresented minority students would be reached so as to realize the educational benefits of a diverse student body.”26 Another former dean of law school admissions testified that there was “no number, percentage, or range of numbers or percentages” sought by the school to reach what it deemed a “critical mass” of minority students.27
Against this backdrop, Justice Sandra Day O’Connor, writing for a majority of the Supreme Court, concluded that “we endorse Justice Powell’s view [in Bakke] that student body diversity is a compelling state interest that can justify the use of race in university admissions.”28 O’Connor stated that the law school program was sufficiently tailored to survive a strict scrutiny analysis and wrote, “attaining a diverse student body is at the heart of the Law School’s proper institutional mission.”29 Diversity, according to O’Connor, “‘promotes cross-racial understanding,’ helps to break down racial stereotypes and ‘enables [students] to better understand persons of different races.’”30
O’Connor next examined whether the school’s policy was narrowly tailored to achieve the compelling interest. Unlike the “special admissions” program in Bakke, O’Connor concluded that the school’s admission policy was sufficiently tailored and did not operate as a quota system. The policy “is flexible enough to ensure that each applicant is evaluated as an individual and not in any way that makes an applicant’s race or ethnicity the defining feature of his or her application.”31 But she also placed a time constraint on “race conscious admission policies”:
We are mindful, however, that “[a] core purpose of the Fourteenth Amendment was to do away with all governmentally imposed discrimination based on race.” Accordingly, race-conscious admissions policies must be limited in time. This requirement reflects that racial classifications, however compelling their goals, are potentially so dangerous that they may be employed no more broadly than the interest demands. Enshrining a permanent justification for racial preferences would offend this fundamental equal protection principle. We see no reason to exempt race-conscious admissions programs from the requirement that all governmental use of race must have a logical end point. The Law School, too concludes that all “race conscious programs must have reasonable durational limits.”32
O’Connor and the Supreme Court majority recommended “periodic reviews” in order to determine whether the race-conscious admission policy was still necessary in order to attain the goal of diversity.33
Of course, there’s nothing in the Fourteenth Amendment about different scrutiny tests, diversity, and all the other judicial creations designed to get around the clear prohibition against racial discrimination.
Diversity had never been a constitutional basis for government-sanctioned racial discrimination. As Justice Antonin Scalia stated in his dissent:
The educational “benefit” that the University of Michigan seeks to achieve by racial discrimination consists, according to the Court, of “cross-racial understanding,” and “better prepar[ation of] students for an increasingly diverse workforce and society,”…all of which is necessary not only for work, but also for good “citizenship.” This is not of course an “education benefit” on which students will be graded on their Law School transcript (Works and Plays Well with Others, B+) or tested by the bar examiners (Q: Describe in 500 words or less your cross-racial understanding). For it is a lesson of life rather than law—essentially, the same lesson taught to (or rather learned by, for it cannot be “taught” in the usual sense) people three feet shorter and twenty years younger than the full-grown adults at the University of Michigan Law School, in institutions ranging from Boy Scout troops to public-school kindergartens.34
There is another point to make here, and Brian Fitzpatrick, a former Supreme Court law clerk, has made it. It is that many universities practicing affirmative action in their admissions programs (and justifying such programs under the rubric of “diversity”) actually work to segregate races within the institution, thereby defeating the very purpose they claim to pursue. For example, in 1999, Princeton University held a separate graduation ceremony for minorities. Certain universities have separate “multicultural” dormitories. These dorms allow members of minority groups to segregate themselves from the general student population. Even the University of Michigan, a party in Grutter, holds a separate graduation ceremony for black seniors.35
And as Samuel Issacharoff, a law professor at Columbia Law School, has stated, “The commitment to diversity is not real. None of these universities has an affirmative-action program for Christian fundamentalists, Muslims, Orthodox Jews, or any other group that has a distinct viewpoint.”36 “Diversity” is just the clever label the Court gives to reverse discrimination.
Besides, Americans don’t need government-orchestrated diversity. We are a racially and ethnically diverse populace, and are becoming more so every year. In 2004, the U.S. Census Bureau projected that America’s Hispanic and Asian populations would triple over the next fifty years. By the year 2050, whites would represent half of the total population.37 One in six adopted children is racially different from his or her parents. In 2000, one in fifteen marriages in the U.S. was interracial. This is up from one in twenty-three in 1990.38
More to the point, as a matter of law, O’Connor’s decision fails her own stated requirement that the Law School program be “narrowly tailored” to achieve the purported “compelling government interest” of diversity. As Chief Justice William Rehnquist argued in his dissent, any program that seeks a “critical mass” of “underrepresented minority” students is essentially a quota system. Rehnquist wrote:
From 1995 through 2000 the percentage of admitted applicants who were [underrepresented minorities—African Americans, Native Americans and Hispanics] closely tracked the percentage of individuals in the school’s applicant poll who were from the same groups…. For example, in 1995, when 9.7% of the applicant pool was African American, 9.4% of the admitted class was African American. By 2000 only 7.5% of the applicant pool was African American and 7.3% of the admitted class was African American. This correlation is striking.39
Justice Clarence Thomas, in his dissent, pointed out the essential unfairness of the quota system: “No one would argue that a university could set up a lower general admission standard and then impose heightened requirements only on black applicants. Similarly, a university may not maintain a high admission standard and grant exemptions to favored races.” If the school wanted to encourage “diversity” all it had to do, Thomas noted, was lower its admission standards.40 Thomas also repudiated Justice O’Connor’s twenty-five-year time limit on her decision, writing that “the Law School’s current use of race violates the Equal Protection Clause and that the Constitution means the same thing today as it will in 300 months.”41
Apart from violating the Fourteenth Amendment, as a practical matter O’Connor’s decision uses nebulous terms and applies subjective analysis that will predictably result in further litigation and inconsistent decisions.
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br /> A companion case to Grutter v. Bollinger was Gratz v. Bollinger.42 In Gratz, the Supreme Court decided that the University of Michigan’s undergraduate admissions program—which had a “selection index” (its preferred mislabeling of racial discrimination)—failed the strict scrutiny analysis. The majority in Gratz found that the “selection index” was not narrowly tailored to meet the state’s compelling interest to promote diversity, so it violated the equal protection clause of the Fourteenth Amendment.43 The majority’s reasoning is summarized best by Rehnquist:
The current policy automatically distributes 20 points to every single applicant from an “underrepresented minority” group, as defined by the University. The only consideration that accompanies this distribution of points is a factual review of an application to determine whether an individual is a member of one of these minority groups. Moreover, unlike Justice Powell’s example, where the race of a “particular black applicant” could be considered without being decisive…the automatic distribution of 20 points has the effect of making “the factor of race…decisive” for virtually every minimally qualified underrepresented minority applicant.44
While the Court reached the right conclusion in Gratz, it did so by an overly convoluted reading of the Fourteenth Amendment. The Fourteenth Amendment is not about charts and indexes and statistics; the distinction the Court finds between the Grutter and Gratz admissions programs are hyper-technical. The Court seems to believe that government-sponsored racial discrimination is okay as long as it is done on an individual rather than a group basis. But where is that distinction in the Constitution?
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