Sociology

Affirmative action is nothing more than the legal and institutional manifestation of a debate that is deeply rooted in Americas quest to ensure equal opportunities and fair treatment for its entire citizenry.  Although the precise term was not formally adopted until the twentieth century, a review of the historical literature and the constitutional jurisprudence clearly demonstrates that the pursuit of equal opportunity for individuals characterized as minorities has frequently been a bitter and difficult struggle.
In 2003 the United States Supreme Court addressed a very specific and increasingly contentious affirmative action issue, the use of racial preferences within the context of college and university admissions at the University of Michigan, and in this case attempted to more precisely define the extant to which a minority status could be employed in ways to create racial or minority preferences in the admissions process.  Rather than creating a bright-line rule that was easily applicable, however, the Supreme Court instead created an affirmative action standard that is so subjective as to render objective analysis nearly obsolete.  Specifically, in rejecting weighted measures for minority admissions, the Supreme Court held that the University of Michigans affirmative action approach to undergraduate admissions was unconstitutional.  The problem that emerges from this decision, and a problem which has generated thousands of pages of fierce commentary in academic journals since 2003, is that minority status can still be used as part of an admissions decision-making process in a subjective manner.  It is this residual subjectivity which has made it difficult to know precisely what types of considerations will be constitutional and which will be deemed unconstitutional.  All racial discrimination, including that sanctioned by affirmative action, should be eliminated.

The Supreme Court decisions dealing with affirmative action in university admissions situations have had to deal with competing arguments.  Affirmative action proponents argue that it is necessary to remedy past patterns of discrimination and to promote diversity.  Affirmative action opponents, on the other hand, argue that it is nothing more than a reverse type of discrimination.  Two Supreme Court cases illustrate how these arguments have been resolved.  The most important Supreme Court case involving affirmative action policies in a university admissions context arose from a white applicants rejection from the medical school at the University of California Davis in 1978.  The rejected applicant, Bakke, filed a lawsuit arguing that the medical schools admissions policy violated the Equal Protection Clause of the Fourteenth Amendment, a similar provision in Californias constitution, and the aforementioned provisions of federal Civil Rights legislation.  By a very narrow majority, 5-4, the Supreme Court ruled in favor of the rejected student.  What was notable about this case was the fact that Justice Powell, writing for the majority, also made this a First Amendment issue in which the Supreme Court recognized what it termed a diversity interest.  This diversity interest was thereby converted into a constitutional right that was characterized as the academic freedom to select a student body through affirmative action admissions policies however, and perhaps the most significant feature of the courts decision, Powell also provided that the majority  did not view the perceived constitutional interest in diversity as granting a broad license to universities to adopt any kind of affirmative action policy.   What emerges from this case is that race may not be used as a sole determinative factor, or even as a predominant factor, when engaging in higher education admissions processes.  Race may be incorporated into the decision-making process, because colleges and universities have a constitutional right to academic freedom in the way that students are selected and admitted, but it must be one of many factors.  Racial diversity in higher education served what the Supreme Court characterized as a compelling state interest, but in the instant case the Supreme Court further noted that racial preferences that have the effect of discriminating against people of other races must be narrowly tailored in order to advance that compelling state interest.  This case was criticized as being reverse discrimination by many people as being an enlightened decision by other people.

A more recent case that illustrates these arguments about affirmative action arose from a university admissions policy at the University of Michigan.  The case was initiated when two white residents of Michigan applied for admission to the University of Michigans College of Literature, Science, and Arts and were rejected.  This rejection was based on an admission procedure that employed a 150 point scale.  Points were allocated depending on an applicants standardized test scores, high school grade point average, the prestige associated with the applicants high school, and the difficulty associated with the courses taken in high school.  These points were all fairly objective and there were no preferences.
The controversy arose from the additional fact that minority undergraduate applicants to LSA could receive a 20-point bonus on the basis of race, which takes into consideration other criteria including academics. Race is also covered in a category called other factors which also is entitled to 20 points, one-fifth of the total points needed for admission.    This 20-point bonus was based on race and it often meant the difference between a successful admission application between white and African American applicants.  Further refinements were made to this admissions policy, in 1999 and 2000, in which admissions officers could in addition to the potential 20-point bonus flag minority applicants who were considered underrepresented at the university or in a particular faculty.  These flagged applicants were consequently placed into a pool for further consideration while white applicants were simply sent rejection letters.  Such an admissions approach was not particularly unique in the higher education context indeed, it is well-established in the law reviews and jurisprudential literature that there is a constitutional conception of academic freedom that encompasses the freedom of universities to select their student body.   It is the scope of this academic freedom, the factors that a university may rely upon, that defines and limits this constitutional conception regarding a universitys freedom to select a student body.  This freedom is therefore not absolute and the legal limitations are derived from the Supreme Courts interpretation of the United States Constitution.  Therefore, in this recent case, affirmative action was limited by stating that race can be a factor toward achieving diversity but that it cannot be a sole or dispositive factor.

A review of these famous cases, and the arguments both in favor and against affirmative action, suggests that there is no perfect answer.  The best answer, however, if racial discrimination is to one day be eradicated, is to gradually eliminate affirmative action programs.  To be sure, this may seem troubling because so many people have benefited from these policies on the other hand, it can be seen that racial resentment is cultivated by these policies rather than eliminated.  It is not fair, nor consistent with the constitution, for whites of Asians to be discriminated against in a systematic manner.  The Michigan case thus provides a fairly reasonable compromise because race cannot be used to create points or racial quotas but may be considered as part of a diversity goal when selecting whom to admit and whom to reject.  The danger is that this discretion will be abused.  Affirmative action no longer serves the goal of eliminating racial discrimination.

In conclusion, colleges and universities can simply avoid specificity, state for public consumption that race is simply one of many relevant factors, and then simply use race as a dominant factor without admitting this fact.  In this respect, because the Supreme Courts Michigan decision allows for this type of potential duplicity and abuse, the case is dangerous if the principles underlying the Equal Protection Clause are to be safeguarded for all American citizens.  The Supreme Court would be well-advised to avoid the subjectivity associated with the diversity approach and return to a more rigorous Equal Protection analysis that strictly scrutinizes racial preferences in the higher education admissions context.