Right on the Law
The Supreme Court is poised to potentially make affirmative action a violation of the Equal Protection Clause. Prepare yourselves: the Left is going to have an aneurysm. But it really shouldn’t—a ruling making affirmative action a violation of the Equal Protection Clause would be less about racists “winning” and more about a positive shift in society.
For some time, the Supreme Court has accepted affirmative action in the way party-goers handle a drunk, vomiting fratboy: they have tolerated it, albeit with great disdain. Current affirmative action law hinges around two cases—Grutter v. Bollinger (2003) and Regents of the University of California v. Bakke (1978)—that essentially hold that, under strict scrutiny analysis, affirmative action by the State is legal only insofar as government actors consider race, but do not create quotas for specific racial groups or ethnicities. At the moment, this logic is still good law, but in Grutter, Justice O’Connor explicitly gave it a sunset provision: “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.” The Grutter Court wasn’t kidding around about this time limitation: it explicitly required that current affirmative action programs have a “logical end point” and be “limited in time.”
In other words, under the exacting standards of the Court’s strict scrutiny test, affirmative action is only justified as a temporary fix to fight the specter of pervasive racism in society, and as that specter recedes and America becomes less divided, the State becomes less and less justified in implementing affirmative action programs.
Nearly ten years later, the Court may be poised to declare that the specter has (at least somewhat) receded and that strict scrutiny no longer permits affirmative action. The Court recently granted certiorari in Fisher v. University of Texas, a case involving two women who allege that they were denied admission to the University of Texas because its admissions program took race into account (and thus, at least by inference, equally or less qualified applicants were admitted instead of the two women due to their race). The fact that the Court even granted certiorari in this case is strong evidence that the Court wishes to reanalyze Grutter, leading many commentators to believe that Grutter may soon die a quick death and affirmative action by the State may be henceforth declared a violation of the Equal Protection Clause.
Is the death of Grutter a desirable result? Yes, regardless of the fact that discrimination may still exist today.
Grutter and cases before it—even Brown v. Board of Education—were decided with the image of historical racism in mind, and the entire concept of affirmative action was structured around the idea that certain minority groups in America needed help fighting against discrimination that was sewn into the fabric of American society. In this sense, affirmative action was not a perfect solution or even a great one—it was a Band-Aid slapped on a bleeding wound in society implemented in order to fix a massive issue that couldn’t be remedied with slow surgical precision.
But today, discrimination is shifting in form, and affirmative action may very well be holding back societal recovery.
At its worst, discrimination in America was institutionalized in the law—from restrictive property deeds to elections. This discrimination manifested itself in education, from explicitly “black schools” to de facto segregation of minorities in school districts. But discrimination is becoming less institutional and more cultural. While African-Americans may no longer have to worry about being deliberately pushed into a segregated school, they now deal with a culture that promotes “us-vs.-them” thinking through music lyrics, “ethnic” television shows/channels, and the like. Affirmative action isn’t exactly poised to fix a racist culture—it just (at least theoretically) helps fight against the systemic manifestation of historical racism in education. Thus, while affirmative action may have been a valuable approach to fighting societal racism as early as ten years ago, it is increasingly less so today as racism changes in form and effect and as schools are less blatantly segregated.
The problem is that affirmative action, in many ways, encourages the us-vs.-them mentality that can foster the cultural discrimination which erodes society. When universities across America blatantly give imaginary points to applicants of a different race, they draw lines in the sand between races, determining who is a “minority” and who is in the nebulous “majority.” Admitted and unquestionably qualified “minority” students often find themselves with an imaginary asterisk placed upon their admission to a prestigious school by those suspecting their admission was the result of affirmative action instead of hard work and intelligence. Programs like those operated at the University of Texas are sometimes blatantly racist, making questionable decisions like lumping all applicants from Asian countries into an “Asian” category despite the enormous variety of cultures present in Asia. And, as a recent article in the New York Times noted, affirmative action has caused significant harm to Asian-Americans, who are frequently finding themselves rejected to schools of their choice as those schools deliberately avoid admitting a disproportionately “Asian” entering class. In other words, where the government has forced various racial and ethnic groups apart through programs like affirmative action, it has discouraged those same groups from merging back together.
If we want to help minority applicants be competitive in the application pools of top schools, the solution to the problem is fixing the terrible public school systems that under-serve these students, not assigning imaginary points. Minorities wouldn’t need imaginary University of Texas-style points if local school boards—especially those in inner cities—did not create cesspit schools filled with incompetent (yet somehow tenured) teachers and hopeless students. Why should affirmative action fix on the back end what reform (or even privatization) of public schools could fix on the front end?
Admittedly, there very well may be some purposes served by affirmative action, and the proverbial bleeding wound of discrimination may very well have not sealed up like many think it has. Nonetheless, now more than ever, it appears that affirmative action may cause more harm than it causes good. Fisher v. University of Texas isn’t about whether discrimination exists, it isn’t about WASPs trying to take over America, and it certainly isn’t an attempt at bringing back Jim Crow laws. It is about society growing and considering ripping off the Band- Aid. It seems like it’s about time.
Kirk Sigmon is a graduate student in the Law School. He can be reached at kas468@cornell.edu.