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Mayo '13: Negating affirmative action

Nine years ago, Supreme Court Justice Sandra Day O'Connor penned a 5-4 majority opinion in the case of Grutter v. Bollinger that upheld the affirmative action admissions policy of the University of Michigan Law School. In that opinion, the Court ruled that a race-based criterion for university admission "may favor underrepresented minority groups," but that also considers other factors on an individual basis does not amount to a "quota system" deemed unconstitutional by the Court's previous holding in Regents of the University of California v. Bakke. Last week, the Court revisited the issue when it heard oral arguments in the case of Fisher v. University of Texas.

Abigail Fisher, a white woman rejected by the University of Texas, alleges that the school violated her constitutional rights by holding her race against her to boost the school's black and Hispanic enrollment. The Supreme Court should seize the opportunity to overturn its previous mistake in Grutter and reaffirm the promise of equality granted under the Equal Protection Clause of the Fourteenth Amendment.

The Equal Protection Clause provides that no state shall "deny to any person within its jurisdiction the equal protection of the laws." In Grutter, the court noted that college racial classifications for the purposes of admission are constitutional only if they are narrowly tailored to "further compelling governmental interests." Proponents of racial preferences in university admissions find such interests necessary to create a diverse student body and reap the educational benefits of interactions between students of diverse backgrounds. Amicus curiae briefs in the Grutter case claimed that such benefits included, but were not limited to, "cross-racial understanding and diminished racial stereotypes." If a student comes from an underrepresented minority, the logic goes, that individual becomes more suited to enhance the educational experiences of  other students. 

But to take the leap of allowing race-based discrimination, we ought to be absolutely certain that such benefits are enough to constitute a suitably compelling state interest and that the diversity universities seek cannot be achieved via other means. By claiming that "diversity" and "educational benefits" serve as the compelling state interest that warrants discrimination, the Supreme Court blurs the line between the means and the end. 

As a matter of policy, one can quickly think of other ways public universities could achieve the same outcomes. Perhaps instead, universities could discriminate on the basis of class or family income to obtain roughly the same result in the make-up of its student body. This would skirt the Equal Protection issue and allow universities to maintain its commitment to reaping the educational benefits of diversity. The existence of this option casts doubt on the conclusion that racial preferences are necessary to reach the desired outcome.

Even ignoring the existence of alternative means, the strict scrutiny to which race-based classifications are based still ought to require a more stringent interest requirement than is currently met by the "educational benefits" that arise from a diverse student body. To discriminate on the basis of race, gender or any other immutable characteristic in a way that would decisively deny students like Abigail Fisher admission to public universities, the state ought to be forced to show that such discrimination is essential. The fact that automatic acceptance policies, such as the University of Texas' top ten percent rule, already serve to admit a number of black and Hispanic students from majority-minority schools who add a great deal of diversity to student bodies suggests that the marginal benefits being reaped through affirmative action fall short. 

Lastly, the racial equality claim that has long undergirded the more technical constitutional debate regarding affirmative action is worth addressing. One hundred and forty years ago, Frederick Douglass delivered a message to a group of abolitionists: "What I ask for the negro is not benevolence, not pity, not sympathy, but simply justice. The American people have always been anxious to know what they shall do with us. ... Do nothing with us! Your doing with us has already played the mischief with us." 

Just as Douglass suggested in the 1860s, I believe that persons of every race, gender and creed are more than able to succeed on their own merits without any sort of preference that provides a corrective boost to their standardized test scores or other admissions criteria at the expense of others. Chief Justice John Roberts once remarked, "The only way to end racial discrimination is to stop discriminating on the basis of race." If true equality is what we seek, then surely affirmative action is out of step with our goal.

In keeping with the ideals of equality and opportunity that are written into the Constitution and Declaration of Independence, the Supreme Court should rule in favor of Abigail Fisher and end racial discrimination in our public universities that currently disadvantages certain students by revoking their rights under the Fourteenth Amendment.

 

Heath Mayo '13, from Whitehouse, TX, is a political science and economics concentrator pursuing a master's degree in history. He can be reached at james_mayo@brown.edu.


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