Bakke is a good example of the jurisprudential confusion around affirmative action: the Court managed to produce six opinions in that case.
The plurality opinion, by Lewis Powell, struck down an admissions program at the University of California at Davis School of Medicine, from which Allan Bakke, a white man, had been twice rejected, but it upheld the right of schools to use race-conscious admissions programs. The problem at Davis was that the medical school basically ran two admissions processes, one for everybody and one that effectively considered only minority applicants, for whom sixteen places were set aside.
Bakke was able to show that his record was superior to the records of some of the students who had been admitted through the special program. The Davis program was obviously not narrowly tailored. One consideration that the university offered in the way of compelling state interest was its belief that minority M. Powell found no evidentiary basis for this, and it was arguably a racist assumption. The school could have investigated whether applicants had worked with underserved communities in the past.
They did not, and Powell suggested that such a standard might be a better proxy than race. Admissions programs determined by race are in violation of both the equal-protection clause of the Fourteenth Amendment and Title VI of the Civil Rights Act, which outlaws racial discrimination in institutions that receive federal funding.
Powell argued, however, that another right was in play: the First Amendment; specifically, the right of academic freedom. There is no constitutional right of academic freedom, but Powell cited a case, Sweezy v. New Hampshire, in which Felix Frankfurter, in a concurring opinion, quoted South African jurists to the effect that the principle of academic freedom allows a university to determine who will teach its classes and who will sit in its classrooms.
The Michigan case, Grutter v. Bollinger, in , was basically a relitigation of Bakke. As was Fisher v. Texas, in , and the second round of that case, known as Fisher II, in The Fisher cases involved a white woman who was turned down for admission to the University of Texas at Austin, U.
Each time, the Court upheld the constitutionality of using race as a factor in admissions, but they were close calls. The vote in Fisher II was 4—3. Harvard, is the same case one more time.
The person behind both Fisher and the Harvard case is Edward Blum, a man who for whatever reason has decided to devote his time to preventing a small number of black and brown teen-agers from attending colleges that are desperate to have them. Harvard won at the trial level because the judge ruled that its admissions program is consistent with other Supreme Court decisions, such as Bakke.
But, given the composition of the Supreme Court, it is all too likely that it will decide that the country has timed out of this particular form of remediation. For remediation is fundamentally what affirmative action is. But the reason we have affirmative action is that we once had slavery and Jim Crow and redlining and racial covenants, and that we once had all-white police forces and all-white union locals and all-white college campuses and all-white law firms.
It was zero. Affirmative action is an attempt to redress an injustice done to black people. The Fourteenth Amendment protects white people, too, but that is not why it needed to be written. Holder vacating a central provision of the Voting Rights Act has backfired. It turns out that, when you remove enforcement mechanisms and remedial oversight, things tend to revert to the status quo ante. The whole history of affirmative action shows, as Urofsky somewhat reluctantly admits, that when the programs are shut down minority representation drops.
Diversity, however we define it, is politically constructed and politically maintained. It is possible to understand the opposition to affirmative action of white conservatives, like Ronald Reagan, who regard civil-rights laws as federal overreach and affirmative action as enshrining the un-American notion of group rights.
And it is possible to understand the opposition of black conservatives, like Clarence Thomas, who see it as patronizing to African-Americans. But it is hard to understand the opposition, often diehard, of many white liberals that has persisted since the nineteen-seventies.
Did these people really imagine that passing a law against discrimination would reset race relations overnight? Do they really think that white Americans, wherever they work or go to college, do not carry a lifelong advantage because of the color of their skin?
Do they really believe that there should be no sacrifice to make or price to pay for the systematic damage done to the lives of millions of American citizens and the men and women who are their ancestors? With a lawsuit against Harvard, Asian-American activists have formed an alliance with a white conservative to change higher education.
For a healthy person, high doses of vitamin supplements may be unnecessary or even harmful, but for a person whose system is out of balance, supplements are an efficient way to restore the body's balance. Myth 8: Affirmative action tends to undermine the self-esteem of women and racial minorities. For instance, a recent Gallup poll asked employed Blacks and employed White women whether they had ever felt that others questioned their abilities because of affirmative action Roper Center, c.
Indeed, in many cases affirmative action may actually raise the self-esteem of women and minorities by providing them with employment and opportunities for advancement. Myth 9: Affirmative action is nothing more than an attempt at social engineering by liberal Democrats.
In truth, affirmative action programs have spanned seven different presidential administrations—four Republican and three Democratic. Although the originating document of affirmative action was President Johnson's Executive Order , the policy was significantly expanded in by President Nixon and then Secretary of Labor George Schultz.
President Bush also enthusiastically signed the Civil Rights Act of , which formally endorsed the principle of affirmative action. Thus, despite the current split along party lines, affirmative action has traditionally enjoyed the support of Republicans as well as Democrats.
Myth Support for affirmative action means support for preferential selection procedures that favor unqualified candidates over qualified candidates. Actually, most supporters of affirmative action oppose this type of preferential selection.
Preferential selection procedures can be ordered along the following continuum:. Selection among equally qualified candidates. The mildest form of affirmative action selection occurs when a female or minority candidate is chosen from a pool of equally qualified applicants e.
Survey research suggests that three-quarters of the public does not see this type of affirmative action as discriminatory Roper Center, d. Selection among comparable candidates. A somewhat stronger form occurs when female or minority candidates are roughly comparable to other candidates e. The logic here is similar to the logic of selecting among equally qualified candidates; all that is needed is an understanding that, for example, predictions based on an SAT score of are virtually indistinguishable from predictions based on an SAT score of Selection among unequal candidates.
A still stronger form of affirmative action occurs when qualified female or minority candidates are chosen over candidates whose records are better by a substantial amount. Selection among qualified and unqualified candidates. The strongest form of preferential selection occurs when unqualified female or minority members are chosen over other candidates who are qualified.
Although affirmative action is sometimes mistakenly equated with this form of preferential treatment, federal regulations explicitly prohibit affirmative action programs in which unqualified or unneeded employees are hired Bureau of National Affairs, Even though these selection procedures occasionally blend into one another due in part to the difficulty of comparing incommensurable records , a few general observations can be made. Second, the selection of women and minority members among unequal candidates—used routinely in college admissions—has deeply divided the nation with the strongest opposition coming from White males and conservative voters.
And finally, the selection of unqualified candidates is not permitted under federal affirmative action guidelines and should not be equated with legal forms of affirmative action. By distinguishing among these four different selection procedures, it becomes clear that opposition to stronger selection procedures need not imply opposition to milder ones.
What is needed, I would argue, is less of an effort to caricature affirmative action and more of an effort to discuss which of its many forms are beneficial. Poon also said most of them had stories about experiencing racial discrimination. Zhao says the way to address racial discrimination is to remove all race-based policies, echoing other affirmative action opponents.
Otherwise, he says, Asian Americans become victims — perhaps like his son, who he says experienced racial discrimination from at least two Ivy League schools who rejected him, despite an application that was more than deserving. We contribute to society. Why are Asian Americans being punished? Then Zhao dials down the rhetoric and presents data that Asians are being hurt by affirmative action: the Espenshade data, which seems to prove affirmative action penalizes Asians while helping black and Hispanic people.
When the Supreme Court first ruled on affirmative action in , it ruled that affirmative action could not specifically help black and Hispanic students at the expense of other students.
So that left only a single path for affirmative action to walk: Race could only be considered to create diversity on campuses. In the decision Grutter v. It essentially turned race into a peripheral characteristic, alongside things like whether you played sports. Then in , the Court laid out strict rules for when race can be used in a holistic review, further limiting affirmative action:. Most recently, in a decision , the Court further constrained the consideration of race.
Only then can a school consider their race. Ultimately, this means that schools are severely limited in how they can think about race in admissions. If we look more closely at the Espenshade data within this context, we begin to see why the chart of racial bonuses and penalties paints a misleading picture of affirmative action.
For one, Espenshade and Radford used data from just a handful of schools in , and it was data from before major court rulings changed how schools can consider race. But more importantly, the Espenshade analysis paints a picture of an alternate reality in which we went down a caricatured version of the other path. It portrays a world where racial bonuses are awarded to disadvantaged groups and racial penalties are levied against Asian and white students. His main piece of evidence was the lack of growth in the Asian-American population at Ivy League schools, despite the growing percentage of college-age Asians nationwide.
There are several flaws with this analysis. It assumes the quality of the Asian applicant pool has stayed the same as the population grows, as Poon points out. It also only looks at how many students enroll in the school, and not how many students are admitted to the school.
Jenn Fang, who writes at Reappropriate. For people who have been challenged in their lives e. Racial and sexual barriers still exist in our society: affirmative action attempts to create a level playing field to help people compensate for that fact.
Overall, people of color are exceptional assets to universities, colleges and employers. Their contribution adds to the quality of a place. In Opposition to Affirmative Action Some people say that instead of ending discrimination, affirmative action actually does the opposite. They say that it is unfair to use race as a consideration in admitting students to a college or university. Others argue that many of the students admitted on the basis of affirmative action are not equipped to perform in, for example, Ivy League schools.
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