| James N. Markels | ||||
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by
James N. Markels The
fate of affirmative action in colleges across America hangs in the
balance as the Supreme Court prepares to hear argument next month in the
case of Grutter v. Bollinger.
The thumbnail sketch of Grutter is that a white applicant
to the University of Michigan’s law school was rejected admission and
sued the university because its admissions process gave certain minority
applicants a boost based on the color of their skin, thereby denying the
petitioner an equal opportunity to vie for a place in the incoming
class. The basic legal test
for such a program is strict scrutiny, where the admissions process must
be found to serve a compelling governmental interest and is narrowly
tailored to serve that interest. The
resolution of Grutter hinges on whether the goal of a diverse
student body at a state university serves a compelling governmental
interest. The
only time the Supreme Court directly spoke to that issue was in the
famous case of Regents of Univ. of Cal. v. Bakke, where a
fractured Court rejected a particular affirmative action program while
not rejecting the use of race altogether in university admissions.
Decisions like Bakke provide legal commentators with
endless fun as it’s not exactly clear what the absolute holding of Bakke
is or what types of affirmative action are constitutional, and it lets
both sides in Grutter cite to the exact same language and draw
opposite conclusions. Forget
Bakke. It seems to
me that two other cases demonstrate how the voting will turn out in Grutter.
First, in Metro Broadcasting, Inc. v. FCC, Justice
O’Connor, in a dissent joined by Chief Justice Rehnquist and Justices
Kennedy and Scalia, argued that “[m]odern equal protection has
recognized only one [compelling governmental] interest: remedying the
effects of racial discrimination.”
So there’s four votes against the idea that a diverse student
body is such an interest. And
then you have Justice Thomas in his concurrence in Adarand
Constructors, Inc. v. Pena arguing that “government-sponsored
racial discrimination based on benign prejudice is just as noxious as
discrimination inspired by malicious prejudice,” clearly rejecting
affirmative action programs as a form of “benign prejudice.”
That’s five votes. The affirmative action program in Grutter is going
down. That’s
all legal mumbo jumbo, though. There’s
a far more important reason why affirmative action in the state colleges
does a disservice to everyone, including those who benefit from it. It won’t get talked about in the Grutter briefs or
in oral arguments, but it’s clear that affirmative action at the
college level is there for one purpose: To rectify the inequities
created in the public grade school system.
Affirmative action passes the buck for this inequity on to the
colleges, thereby giving the public schools less incentive to cure the
problem they create, perpetuating the cycle indefinitely. This
is easily demonstrated by considering which minorities receive the
benefits of affirmative action in Grutter.
Do Asian-Americans get a bonus to their applications?
Of course not. African-Americans,
Mexican-Americans, American Indians and Puerto Ricans do, however. Why? Simply put,
Asian-Americans outperform even whites in the public schools, getting
higher grades on average and higher scores on the SATs and ACTs.
Asian-Americans don’t get affirmative action bonuses because
they don’t need them; the average Asian-American applicant comes out
of the public schools on equal or superior footing to the average white
applicant. It’s
a different story for African-Americans, Mexican-Americans, American
Indians and Puerto Ricans. They
come out of the public school system with lower scores on average
compared to whites, with African-Americans scoring the lowest—about
100 points lower on the SATs than whites.
In any merit-based application system it’s obvious why these
minorities would be underrepresented. And
this is pretty much how it has always been, for decade after decade.
Since these minorities as individuals are not less capable than
whites or Asian-Americans, the issue is either cultural or in the public
school system itself. Since
whites and Asian-Americans from the same neighborhoods who attend the
same schools as the other minorities (even the most impoverished inner
city schools) still do better, my hunch is that the problem lies more
with the public school system itself.
Affirmative action programs in college admissions are the
Band-Aid to that problem, covering up the public school’s failures by
trying to make the numbers in the colleges more representative of the
population. |
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