Affirmative Action Essays

There is much to be said for this argument, although benignity is in the eye of the beholder.The large number of people disadvantaged by preferences — all whites; the 48% of Hispanics, similar proportions of Asians, and 80% of Native Americans who self-identify to the Census Bureau as white; anyone else (dark-skinned Middle Easterners, for example) who is not considered part of David Hollinger's "ethno-racial pentagon"; and the more than seven million people (many with black ancestry) who consider themselves multi-racial and wish to be identified as such (if they must be racially identified at all) — are unlikely to think of this disadvantage as benign.The Court's doctrinal fuzziness, which its 2013 decision in only further obscured, allows these institutions to maintain the preference systems dictated by their political, reputational, and ideological incentives.

There is much to be said for this argument, although benignity is in the eye of the beholder.The large number of people disadvantaged by preferences — all whites; the 48% of Hispanics, similar proportions of Asians, and 80% of Native Americans who self-identify to the Census Bureau as white; anyone else (dark-skinned Middle Easterners, for example) who is not considered part of David Hollinger's "ethno-racial pentagon"; and the more than seven million people (many with black ancestry) who consider themselves multi-racial and wish to be identified as such (if they must be racially identified at all) — are unlikely to think of this disadvantage as benign.The Court's doctrinal fuzziness, which its 2013 decision in only further obscured, allows these institutions to maintain the preference systems dictated by their political, reputational, and ideological incentives.

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The framers of the 14th Amendment may have countenanced affirmative action favoring former slaves and perhaps their descendants, but they would never have approved of today's affirmative-action programs, in which most of the potential beneficiaries are immigrants or descendants of immigrants.

But regardless of whether such programs are constitutional or not, they are undesirable public policy, indeed perverse in practice.

Their costs vastly exceed their benefits, and in ways that should cause universities and courts alike to change course.

By considering both the legal architecture of the Court's affirmative-action jurisprudence and the empirical evidence regarding the effects of affirmative action in higher education, we can begin to see the defects of today's affirmative-action regime and the powerful case for change.

But rather than adopting this benign-preference argument, the Court has instead diluted strict scrutiny without actually saying so.

Indeed, the majority did not even come close to applying the strict-scrutiny standard as traditionally understood.

Nor did it explain why the Constitution allowed the law school to define the desired, favored diversity in narrow ethno-racial terms that excluded even most minorities (other than African-Americans, Native Americans, and the Spanish-surnamed) while treating other kinds of diversity as either much less weighty or wholly irrelevant to satisfying the overriding diversity rationale.

Indeed, as Justice Thomas pointed out in a footnote in his dissent, the school seemed not to value the additional diversity that black men, who are greatly under-represented relative to black women, would provide.

The Court reaffirmed these three principles a quarter-century later in the 2003 cases of , involving the admissions policy of the University of Michigan's law school, the majority ruled that an admissions process giving some advantage to "underrepresented minority students," but also taking into consideration a variety of other factors (applied strictly on an individual basis for each applicant), did not amount to a quota system and so was constitutionally permissible.

But in , which looked at that university's undergraduate admissions policy, the Court found that, because it granted a set number of admission points to any racial-minority applicant (rather than considering each applicant individually as the law school did), it amounted to an impermissible quota system.