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The Institutionalized Racism of Affirmative Action


A few days ago, the Rev. Al Sharpton dramatically warned that “50 years of progress” for blacks could be “erased with one ruling” by the United States Supreme Court.

The case is Fisher v. University of Texas at Austin, which the Court will hear on October 10. At issue is whether the Equal Protection Clause of the Fourteenth Amendment allows the university to base student admissions on race. There are also lesser questions: for example, can the specific application process be justified under the compelling-state-interest test?

Some veteran observers of the Supreme Court predict a defeat for the university, which has a race-based admissions policy, despite that lower courts have found in its favor. Carter Phillips, who has argued 76 cases before the court, is one such observer. Phillips expects a verdict that “will chip away at race-based admissions for colleges.”

It remains to be seen whether race-based admissions will be “chipped away” on technicalities or dealt a mighty blow on a more fundamental basis.


What is affirmative action? And why?

Affirmative action refers to the procedures a company or institution implements to remedy or prevent discrimination. Ethically, many people would agree with affirmative action, but some dispute the wisdom of enforcing it by law. (Note: many affirmative-action measures are mandated, not by legislation, but by administrative regulations and judicial rulings that lend the force of law.)

The Equal Protection Clause of the Fourteenth Amendment is often cited as the constitutional basis of affirmative action. The clause reads,

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The clause has been interpreted as banning discrimination by the states, and the Supreme Court later extended the interpretation to the federal government.

The original intent of affirmative action was to provide a “level playing field” for classes of people, like blacks, who suffered historical disadvantages. Affirmative action was a form of compensatory justice, with government assuming the role of a remedial historian who re-writes the wrongs of 19th-century America, such as slavery. Public universities instituted de facto quota systems that privileged black and female applicants based on their race or gender.

In 1965 President Lyndon Johnson declared,

You do not take a man who for years has been hobbled by chains, liberate him, bring him to the starting line of a race, saying, “you are free to compete with all the others,” and still justly believe you have been completely fair.… This is the next and more profound stage of the battle for civil rights. We seek not just freedom but opportunity … not just equality as a right and a theory, but equality as a fact and as a result.

Appeals to the word “equality” are common. In reality, true equality is one of the first casualties of affirmative action. True equality is possible only when every individual in society receives the same protection of person and property. Instead, affirmative action embeds privilege and handicaps into society based on race and gender. This was inevitable. Equal treatment was not and could not be the goal of affirmative action; the policy seeks to redistribute opportunities and power from one category of person to another.

The intent of affirmative action has drifted since the 1960s, and one concept now looms even larger than equality: diversity. The diversity argument claims the society or “state interest” is enriched by advancing disadvantaged categories of people. In short, affirmative action creates a social good. But it is not clear how decades of advancing people on the basis of race and gender rather than on merit can benefit society. The cumulative effect of over half a century is almost certainly the opposite.

Nor is it clear that affirmative action helps those it purports to benefit. In a Wall Street Journal article (Oct. 4), Director for the Center of Individual Rights Gerald Walpin explains,

The Supreme Court recognized in Richmond v. Croson that affirmative-action racial classifications “may in fact promote notions of racial inferiority.” For example, when racial preferences are granted to some, prospective employers inevitably suspect that minority graduates may have obtained diplomas only due to racial preferences. The many minority graduates who did it on their own are thereby unfairly stigmatized.


Legal context of the university’s admissions policy

An overview of Supreme Court decisions on the affirmative-action policies of public colleges and universities provides a sense of the deep division the issue causes among the judges and of the hair-splitting points that are now being assessed alongside weighty ones.

The key case for affirmative action within higher education remains Regents of the University of California v. Bakke (1978). A rejected white applicant named Allan Bakke sued the University of California at Davis Medical School to compel his admission. At issue was the process that set aside 16 of 100 slots for minority and disadvantaged applicants, who were then processed under different standards than white ones. Some minority applicants had been admitted with less impressive credentials than Bakke. It was a mixed decision. Even though the Court ordered his admission, a split decision (5 to 4) found affirmative action to be constitutional as long as it did not use rigid racial quotas.

The most recent Supreme Court rulings on point are from two associated cases that addressed race-based admission policies at the University of Michigan Law School: Grutter v. Bollinger and Gratz v. Bollinger. The Court heard the cases in conjunction in 2003. In Grutter, a split court found that the Constitution “does not prohibit the law school’s narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body.” At the same time, in Gratz, a split court maintained that the university’s more restrictive point-based admission policy for undergraduates was a quota system and therefore unconstitutional.

Thus, Supreme Court decisions on affirmative action within admission policies have been divisive and borderline contradictory. They have upheld the basic policy as legal while focusing on the minutiae of whether a specific implementation was constitutional. It is not clear whether Fisher will change that trend.


The specifics of Fisher

In 2008, white applicant and Texas resident Abigail Fisher was denied admission to the University of Texas at Austin. Under state legislation known as the “Top Ten Percent Plan,” Fisher would have automatically received first-year admission if she had graduated from high school with grades in the top ten percent. But with her lower grades, Fisher needed to compete with other applicants for the remaining slots (about 15 percent of the freshman class). When her application was rejected, she sued the university for racial discrimination because, she alleged, minority students with fewer credentials had been admitted.

The Top Ten Percent Plan is important to the case for another reason. Passed in 1997, it has had the effect of increasing the presence of minorities at the university. Nevertheless, the university wanted to achieve even higher ratios of non-white students. It began using an admission process for undergraduates that included race as a contributing factor, although not a controlling one. The University of Texas based its decision to use the process largely on the Grutter ruling, which held that the University of Michigan had a “compelling interest” in a diverse campus.

As SCOTUSblog commentator Lyle Dennison explains, “The Supreme Court had ruled that ‘racial diversity’ is a valid goal in higher education, and that college officials may try to advance that goal if they are careful not to make race the decisive factor by itself.” The university took race

into account as part of a personal achievement index that is used along with an academic index … based largely on grades. A given applicant’s race is just one factor in the personal achievement ranking, and the University insists that it does not control outcomes on its own; admissions officers look at each student … in a ‘holistic’ way.

This admissions policy went into effect in 2005.

Thus, an explicitly racial element in the application procedure was added onto a program that was already successful in increasing diversity. Carter Phillips cites the duplication of diversity plans as the reason he believes the university will not prevail, saying “I think the majority [of the Supreme Court] will say that adding race as an explicit factor over and above the significant diversity gains acquired under the 10 percent plan cannot be justified under the compelling state interest test.”



With Fisher, the Supreme Court has an opportunity to end a great social injustice: the institutionalized racism of affirmative action in academia. The Court has a long track record of ruling on technicalities and avoiding basic issues, especially when they are controversial. But there are reasons to be hopeful.

This is a court led by Chief Justice John Roberts, who concluded in an earlier opinion, (Parents Involved in Community Schools v. Seattle School District No. 1, 2007) “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” It is also a case from which the pro–affirmative action judge Elena Kagan has recused herself.

Indeed, the very fact that the Court is willing to hear a case so similar to Bakke and Grutter may indicate a desire to rule differently.

Moreover, affirmative action seems to be an issue whose time has come: there is another case working its way up to the Supremes, involving a statewide referendum in Michigan to ban race-based admissions.

For the good of all groups and every individual, state-sponsored racism needs to be dismantled. It is difficult to believe Martin Luther King Jr. was promoting affirmative action when he proclaimed, “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.”

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    Wendy McElroy is an author for The Future of Freedom Foundation, a fellow of the Independent Institute, and the author of The Reasonable Woman: A Guide to Intellectual Survival (Prometheus Books, 1998).