In order to put together a “diverse” student body, it is standard practice for many colleges and universities to use race as a factor in admissions. An unintended consequence of this policy is that some students who otherwise qualify for admission are denied because of their race.
These race-factor admissions programs are invariably Affirmative Action programs like those that give special consideration to certain minorities in employment and contracting decisions.
Abigail Noel Fisher and Rachel Michalewicz allege that they were denied entrance to the University of Texas because they are white. After they were denied enrollment in the fall 2008 semester, Abigail went on to Louisiana State University, where she will graduate this spring; Rachel attended St. Edward’s University in Austin (also the home of the University of Texas), graduated after three years, and is now a law student at Southern Methodist University.
But the girls did something in addition to attending other schools — they sued the University of Texas, challenging the constitutionality of its admissions process. Since then, U.S. District Court Judge Sam Sparks in Austin dismissed the lawsuit, a three-judge panel of the Fifth Circuit Court of Appeals in New Orleans affirmed the decision, and, in an en banc rehearing and by a 9-7 vote, the full Fifth Circuit refused to consider an appeal.
Opponents of Affirmative Action are hoping the Supreme Court will take up the case. A petition for a writ of certiorari was filed on September 15. Six amicus curiae briefs were then filed with the Court, which has asked the University of Texas to provide a reaction to the new challenge to its admission policy. (Rachel Michalewicz is no longer part of the case, since she has graduated from college already.)
On December 16, the Heritage Foundation and the Federalist Society co-sponsored a debate on the case featuring two advocates for each side, including the original counsel for the University of Texas in the case.
There hasn’t been this much attention to a college admissions Affirmative Action case since Gratz v. Bollinger and Grutter v. Bollinger, both in 2003.
In Gratz, an undergraduate admissions policy at the University of Michigan with a point system awarding 20 points to members of “underrepresented groups” on the basis of race alone was struck down as unconstitutional by a vote of 6-3.
In Grutter, a preferential admissions policy at the University of Michigan Law School that was based on race and had no specific point system but admitted less-qualified minorities over more-qualified whites was ruled constitutional by a vote of 5-4 because “the Law School’s race-conscious admissions program does not unduly harm nonminority applicants.”
Both of those cases harken back to the first Supreme Court Affirmative Action case, Regents of the University of California v. Bakke (1978). In that case, Alan Bakke, a white man, was twice denied admission to the medical school at the University of California at Davis even though his qualifications exceeded those of any of the minority students admitted in the two years since his applications were rejected. Although the Supreme Court ruled, by a vote of 5-4, that the university’s admission plan was unconstitutional and ordered that Bakke be admitted, it also ruled, by a vote of 5-4, that the use of race as a factor in admissions decisions in higher education was constitutional. In the words of Justice Lewis Powell, who cast the deciding vote in each case, “The judgment below is affirmed insofar as it orders respondent’s admission to Davis and invalidates petitioner’s special admissions program, but is reversed insofar as it prohibits petitioner from taking race into account as a factor in its future admissions decisions.”
It is interesting that both California, in 1996, and Michigan, in 2006, had successful ballot initiatives that ended Affirmative Action in admissions to state universities and other public institutions, although the Michigan initiative was recently overturned by a federal court.
Affirmative Action had its beginnings not as a federal program, but as two words in a sentence. In 1961, John Kennedy, in Executive Order No. 10925, created the Committee on Equal Employment Opportunity to end discrimination in employment by the government and its contractors. Every federal contract was required to include this pledge:
The Contractor will not discriminate against any employee or applicant for employment because of race, creed, color, or national origin. The Contractor will take affirmative action, to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color, or national origin.
Applicants for positions would be judged without any consideration of their race, religion, or national origin.
The Civil Rights Act of 1964, in title VI, sec. 601, reinforced that idea:
No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.
Lyndon Johnson, however, expanded that goal. In a 1965 commencement address at Howard University, he said,
Thus it is not enough just to open the gates of opportunity. All our citizens must have the ability to walk through those gates. We seek not just freedom, but opportunity. We seek not just legal equity, but human ability; not just equality as a right and a theory, but equality as a fact and equality as a result.
He then issued Executive Order No. 11246, which laid the foundation for a federal program that would later develop into what is known as Affirmative Action:
It is the policy of the Government of the United States to provide equal opportunity in Federal employment for all qualified persons, to prohibit discrimination in employment because of race, creed, color, or national origin, and to promote the full realization of equal employment opportunity through a positive, continuing program in each executive department and agency.
Under Richard Nixon, the Department of Labor in December 1971 issued Revised Order No. 4, requiring all contractors to develop “an acceptable affirmative action program,” including “an analysis of areas within which the contractor is deficient in the utilization of minority groups and women, and further, goals and timetables to which the contractor’s good faith efforts must be directed to correct the deficiencies.”
So after beginning as two words in a pledge by federal contractors to employ people without regard to race, color, creed, or national origin, “affirmative action” morphed into a program enforced by the Equal Employment Opportunity Commission (EEOC). Headquartered in Washington, D.C., but also working through 53 field offices in every part of the country, the EEOC has 2,500 employees and a $367 million budget.
Affirmative Action is usually seen as a divisive issue, with liberals generally supporting it and conservatives generally opposing it, but such shouldn’t be the case at all.
It is clear that government and public institutions have no business giving adverse or preferential treatment to anyone on the basis of race, color, religion, national origin, ethnic group, sex, age, et cetera. But that doesn’t mean that affirmative action, quotas, discrimination, or preferential treatment based on those characteristics aren’t viable options in a free society — as long as it is a matter of individual liberty and private property instead of government decree.
For the libertarian, the issue is not divisive at all, because, as Jacob Hornberger explains,
A person has the fundamental right to associate with anyone he chooses and on any basis he chooses. He might be the biggest bigot in the world, choosing only to associate with white supremacists, but that’s what freedom is all about — the right to make whatever choices one wants in his life, so long as his conduct is peaceful — i.e., no murder, rape, theft, fraud, or other violent assaults against others.
In a free society, private schools, businesses, organizations, and individual persons would be free to practice or not practice affirmative action. In fact, it couldn’t be otherwise and still be a free society.
If a private school wanted to grant preference in admissions to students of a particular race then so be it. If a parent or student thought the school was too white, too black, too Latino, or too Asian, then he could look for another school.
If a private business wanted to give discounts only to customers of a particular religion, then so be it. Customers of other religions could still continue to shop there or take their business elsewhere. (Strange that no one complains about the widespread prevalence of senior-citizen discounts, that is, age discrimination.)
If a private organization wanted to limit its membership to a specific sex, then so be it. No persons of either sex have the right to force any private organization to admit them.
If a person wanted to associate or not associate with people from particular ethnic groups, then so be it. It doesn’t matter if it is illogical. It doesn’t matter if it is based on false stereotypes. It doesn’t matter what the reason, and it’s no one’s business what the reason is.
“Anything that’s peaceful” means anything that’s peaceful. That is the difference between a free society and one overseen, managed, or controlled by government bureaucrats at the EEOC and the myriad of other federal agencies that infringe upon liberty, property, and the freedom of association.