Surprise! Jesse Jackson Defends Affirmative Action
This country's commitment to civil rights is "under siege," exclaims Jesse Jackson, and "right-wing zealots are abuzz with hope that the Supreme Court will turn its back on precedent, history and justice and ban affirmative action altogether."
More than 100 years ago, the Supreme Court disgraced itself by ruling that legal apartheid--the lie of separate but equal--was constitutional. Almost 50 years ago, it brought that disgraceful era to an end in Brown vs. Board of Education, ruling school segregation illegal. A generation ago, in 1978, it reaffirmed affirmative action in education in the Bakke decision, even while outlawing quotas. Now the question is whether the court will uphold the commitment to diversity or turn back the clock.I'm always amused by "turn back the clock" references, whoever makes them, implying as they do that history is linear, that there are never any wrong turns that have to be corrected, etc. It is an especially ironic phrase here since the legal theory underlying the Plessy decision is that equal protection does not require colorblindness and hence that racial discrimination can in many circumstances be reasonable and hence constitutional. The preferentialist argument today is an unwitting echo of Plessy.
The underlying theory of Brown v. Board of Education, on the other hand, at least insofar as it had a theory, is that official classification by race is on its face a violation of equal protection. This theory was given teeth (many of them subsequently pulled by later Court decisions, some of which are now growing back due to more recent Court decisions) by the Civil Rights Act of 1964, Title VI of which, at issue in the Michigan cases along with the 14th Amendment, says "no person" may be discriminated against because of race in any institution receiving federal funds.
If Jackson's legal argument is weak, his policy argument is even weaker. He writes, for example, of "a fundamental distortion about college admissions."
The distortion is the widespread belief that grades and test scores determine admission to college. The plaintiffs feel aggrieved because they allege that minority applicants with lower grades and/or test scores have been admitted to the school and they have been rejected. They have no right to go to the University of Michigan or its law school. But they allege that their right to equal protection under the law has been violated because advantage has been given to minority applicants.By now regular readers of DISCRIMINATIONS will have guessed what's coming next. Yup, it's the INIQUITOUS UBIQUITOUS NON SEQUITUR:
But the University of Michigan's programs, like most modern programs, do not admit students solely on the basis of grades and test scores. Rather, complex calculations are made to build a student body that is multitalented and multifaceted. Students with alumni parents gain an advantage over those without. Foreign students from around the world get a boost. Athletes with lower grades and scores are routinely admitted. The plaintiffs in this case no doubt had higher test scores and better grades than many students in these categories--but they raise no questions about them.As I've argued ad nauseam (most recently, here, here, here, and here), plaintiffs raised no questions about preferences to athletes or legacies because we neither have nor need a right not to be discriminated against on those grounds. In short, Jackson is saying, in classic IUNS form, that if discrimination for any reason is acceptable discrimination for all reasons -- even race or religion -- must be acceptable as well. Baloney.
Jackson also says that "minority students who can get into the university surely are deserving." That is no doubt true, but it is hardly the question. The question is whether some of them were admitted instead of even more deserving (by whatever non-racial admissions criteria were in place) applicants because of their race. It is true, of course, that no one has a right to be admitted. The right is not to be excluded because of race.
This leaves, finally, the goal of "diversity." Even if that goal is deemed to be compelling, it does not follow that discriminating on the basis of race is the only, or best, way to achieve it. Selective universities, for example, could reduce or even abandon their selectivity to achieve it, admitting high school or college graduates by lottery. Faced with that choice, I suspect administrations at many selective universities would quickly conclude that diversity isn't so compelling after all. But if it's not compelling enough to abandon selectivity, why is it compelling enough to abandon the right against racial discrimination?
Say What?
The Supreme Court, the “highest court of the land,” will be making big waves with their ruling this session on the reoccurring controversy of affirmative action. Mainstream media concerns its self with the pro and con arguments for and against affirmative action when in reality affirmative action is not a black and white issue.
Similar to the Civil Rights Movement, affirmative action is not meant to solve this countries race problems. Affirmative action was created to address the immediate issues of racism and discrimination. If affirmative action is to be successful it must coincide with programs and policies that address the issues of poverty that plague communities of color.
The U.S. Supreme Court’s ruling in the 1978 Bakke decision has caused a fair amount of controversy in the admissions policies of universities around the country. The Bakke decision stated that universities were permitted to take race and ethnicity into account during their admissions procedure in order to attain the “educational benefits of a diverse student body.” The ruling has been upheld with a great deal of controversy because the court ruled that the race/ ethnicity policy must be “narrowly tailored to reach a permissible goal.”
Numerous cases across the country have made their way to the lower federal courts because of the vague wording in the 1978 majority opinion. The myriad of confusion caused by the 1978 ruling resulted in the high profile cases of several rejected white students applying to Michigan Universities undergraduate program and Law School. The university uses separate charts that rank student’s grades and test scores, for minority and white applicants. The ruling from the justices will decide if the university is violating Title VI of the Civil Rights Act, which forbids discrimination by federally funded institutions, and/or the 14th Amendment in the Constitution that guarantees equal treatment for all citizens under state law. Nonetheless the highly anticipated hearing under the Supreme Court is a nail bitter for both those “for” and “against” affirmative action.
The United States was built on a foundation of racism and discrimination based on inferiority that is known to have never existed. Today people of color continue to face discrimination even after the Civil Rights Movement, which was instrumental in demonstrating the bias in society that unfairly transfers into the classrooms of this country. Affirmative action will not solve the issues of racial inequity because it is not meant to.
Universities, pushed by the student activists of the 60’s and 70’s, have come to understand the value and necessity of diversity in a learning environment. Barmak Nassirian, associate executive director of the American Association of Collegiate Registrars and Admissions Officers, said, “There really is an educational dimension to the basic task of putting [an incoming] class together that does involve some measure of diversity. You cannot have a major research institution of a state with a class that does not reflect the society around it.”
Through propaganda opponents of affirmative action attempt to scare people into believing that affirmative action is about taking jobs and positions away from white people and giving them to undeserving and unqualified people of color. It is ironic that whites could possibly think that a social and political system built in their favor would somehow benefit "others."
In fact, many universities including the Ivy Leagues, Duke, the University of Texas, and the University of Virginia, use a system called Legacy. Legacy is when universities set aside slots for applicants whose parents and/or family members attended their institution. Legacy is affirmative action for the wealthy and privileged whose families have a tradition of attaining higher education. Why hasn’t there then been controversy surrounding the issue of legacy? A couple of generations ago, blacks were prohibited from attending some of these universities and wouldn’t be able to reserve “legacy” spots for their children. With the Bakke decision standing Universities still do not reflect the diversity of the communities they are surrounded by making the practice of “legacy” sound even more outlandish.
Justices William H. Rehnquist, Antonin Scalia, Anthony M. Kennedy, and Clarence Thomas have a history of being against affirmative action. Liberal Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg, and Stephen G. Breyer will most likely vote in favor of Michigan’s admissions policy. As usual Sandra Day O'Connor will serve as the swing door. The Justices decision will determine the willingness of this government to address problems of discrimination and affect the next round of students applying to these universities.
Posted by: Anonymous | December 16, 2002 11:10 PM