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I'm not a lawyer or a political science professor.  I'm just an ordinary citizen who is curious about how our political system works.  So I was wondering: What is the Constitutional basis for using racial quotas in college and professional school admissions?  Does setting aside a certain number of slots for a particular race or ethnic group, in order to compensate for past discrimination, violate the civil rights of everyone else?  Is creating an ethnically diverse class a desirable goal for a college or university?  Are the rules different for private and public schools?

What is the Constitutional basis for using racial quotas in college and professional school admissions?  Does setting aside a certain number of slots for a particular race or ethnic group, in order to compensate for past discrimination, violate the civil rights of everyone else?  Is creating an ethnically diverse class a desirable goal for a college or university?  Are the rules different for private and public schools?

I will examine these thorny issues in this episode.  I want to pretend to be Dean of Admissions at a medical school (in the case of Alan Bakke) or law school (in the case of Barbara Grutter), and attempt to come up with a set of rules, taking race into account,  which at the same time furthers the process of affirmative action, is fair to all, and which passes Constitutional muster.  At the end of this episode, I will add my thoughts.  I must say that I usually try not to add my opinion because simply trying to understand the legal issues is hard enough.  But in this case, I have strong opinions which I shall voice.

Let's look at the Bakke case (more properly titled Regents of the University of California v Bakke (1978)) first.   Here are the facts of the case, from Oyez, the Supreme Court's Web site.

Allan Bakke, a thirty-five-year-old white man, had twice applied for admission to the University of California Medical School at Davis. He was rejected both times. The school reserved sixteen places in each entering class of one hundred for "qualified" minorities, as part of the university's affirmative action program, in an effort to redress longstanding, unfair minority exclusions from the medical profession. Bakke's qualifications (college GPA and test scores) exceeded those of any of the minority students admitted in the two years Bakke's applications were rejected. Bakke contended, first in the California courts, then in the Supreme Court, that he was excluded from admission solely on the basis of race.

Bakke claimed that his civil rights were violated, citing the Equal Protection Clause of the 14th Amendment, which states:

nor shall any State...deny to any person within its jurisdiction the equal protection of the laws.

and Title VI of the Civil Rights Act of 1964, which can cause a state agency to lose its Federal funding if it is found to discriminate against a particular group.  Title VI, Section 601, states:

No person in the United States shall, on the ground of race,  color, or national origin, be excluded from participation in, be denied  the benefits of, or be subjected to discrimination under any program or  activity receiving Federal financial assistance.

Bakke was claiming that the University of California at Davis, by reserving 16 out of 100 places for non-whites, discriminated against him, as a white person.  After all, Mr. Bakke's scores in both years that he applied were higher than ALL of the minority applicants.  The stakes were high.  The university, if it lost, would lose all of its Federal money - things like National Science Foundation grants, Federally-backed scholarship and loan programs, help for expanding the physical plant, and so on.

On June 28, 1978, the Supreme Court, in a sharply divided 5-4 decision, written by Justice Lewis Powell, decided that Cal-Davis had indeed discriminated against Mr. Bakke.  The 16 places reserved by their affirmative action program were indeed solely based on race.  The Court ordered Mr. Bakke admitted (which he eventually was), and ruled that race could not be the determining factor for those 16 slots, but that race could be one of the factors.  In an unusual move, Justices White, Marshall, Blackmun, and Stevens, the 4 dissenters, each wrote an opinion - their spin on how to square using race as an admissions factor with the equal protection clause of the 14th amendment.

This must have made admissions deans heads spin.  Wouldn't any factor that favored a particular ethnic or racial group be prejudicial to members of the non-favored groups, even if the facts are not as stark as in the Bakke case?  But affirmative action in admission policies was still the goal for public policy.

It took 25 years, in the case of Grutter v. Bollinger (2003), when the Supreme Court approved a policy in one situation, that of the University of Michigan Law School.  It was another sharply divided 5-4 decision, with all 4 dissenting judges issuing opinions.  Barbara Grutter applied to the law school.

This time, the opinion went Michigan's way.   In civil rights  rulings, there's a doctrine called strict scrutiny, which means that the government has to prove a "compelling governmental interest" if it wants to use a racially based standard.  In the Grutter case, the Court held that creating a racially diverse student body was enough of a compelling governmental interest, and that the University of Michigan had crafted their policy to further it in a legally correct way, that the policy was enough to trump Barbara Grutter's claim that her 14th amendment rights were violated.  There was also some language to the effect that the Court will revisit the issue in 25 years, i.e., the year 2028.

I'm not sure if this is enough guidance for admissions officers, but I'll leave that to them. I want to close with my non-legal two cent opinion.  I think the compelling governmental interest should be economic class instead of race.   College classes are increasingly polarized into super-rich students, who can pay the $50,000/year freight, and others who, by accident of birth, belong to one of the races or ethnic groups that are the disadvantaged flavor of the year - regardless of income.  The vast middle class, with a family income that forces them to pay full, or nearly full price, is excluded from this diversity mix.  I fail to see how the child of a black corporate legal insider, such as Vernon Jordan, will add to the diversity of a college class containing children of white corporate legal insiders.  Perhaps we should apply affirmative action policies to admit the child of an elementary school teacher so that the playing field will become more level.

Originally posted to Ira Krakow on Sun Feb 18, 2007 at 03:56 AM PST.

Poll

Should Colleges Use Race as a Factor In Making Admissions Decisions?

33%22 votes
66%44 votes

| 66 votes | Vote | Results

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Comment Preferences

  •  In Bakkes case I don't believe that it was just (0+ / 0-)

    race.  He was an older admission and that had to be considered over younger app. that would service the Patients longer.

    "Though the Mills of the Gods grind slowly,Yet they grind exceeding small."

    by Owllwoman on Sun Feb 18, 2007 at 04:24:45 AM PST

  •  Should Colleges Use Family Ties to Rich Whites? (9+ / 0-)

    I don't know. Should colleges use family ties among rich white corporate and political power brokers as part of admissions process? You know. Like for George Shrub at Yale? Get back to me on that one.

    But on a more serious note, having grown up in the South during the peak of the Civil Rights movement culminating in Wallace's stand in the school house door and the passage of the Civil Rights and Voting acts under LBJ, having watched Blacks ride in the back of the bus, drink at separate fountains, not be allowed to ride the elveators in office buildings, and been a student at on of the first high schools integrated in B'ham and watched the two Black girls spit at and having to be escorted everywhere by an elderly white woman teacher to protect them, even sitting with them during assembly, I can only say yes, well hell yes, what's wrong with trying to jump start integration of our institutions of higher education?

    Of course economic class is still a primary divider in our society, and has gotten worse over the past few decades, with more and more wealth concentrated in fewer and fewer hands. But I can guarantee you there is still a high correlation between being Black and being economically on the lower rungs of the ladder.

    P.S. If you don't think racism is still alive and well in our society, you might want to rethink that position. Our current administration has done more to turn back the clock on progress for women and Blacks and other minority groups than any administation since the post Civil War era and the emergence of the Jim Crow laws. They have expolited bigotry and hatred to claw their way to power, and empowered and emboldened those who hate to feel it is OK to do so publicly again.

    •  No, they should not. (0+ / 0-)

      I don't object to saving some slots for student's (regardless of race, creed, and cronyism) who need a second chance to prove they can cut the mustard if admitted.  Some kids just get too smart too late and can actually benefit and bloom as a result of the campus/college experience.  

      "Often it does seem a pity that Noah and his party did not miss the boat." Mark Twain

      by dkmich on Sun Feb 18, 2007 at 06:54:39 AM PST

      [ Parent ]

  •  I've a nit to pick... (9+ / 0-)

    What is the Constitutional basis for using racial quotas in college and professional school admissions?

    Quotas and affirmative action are not the same thing.  It's important to make that distinction when examining this issue IMO.  Conflating the two is often a right wing tactic to denigrate affirmative action.


    This space for office use only.


    by cowgirl on Sun Feb 18, 2007 at 04:42:00 AM PST

    •  Quotas vs. Preferences (0+ / 0-)

      You make an excellent point - exactly the line the Supreme Court tried to draw in both Bakke and Grutter.    They disallowed an explicit set-aside quota, but allowed, in some way I don't think is defined to this day, race to be used as a factor (should it count more than GPA or test scores?).

    •  Difference between (1+ / 0-)
      Recommended by:
      Grand Poobah

      quotas and affirmative action just like there is a difference between immigrant and illegal immigrant.  Somehow all distinction can get lost when in the way of an argument.

      "Often it does seem a pity that Noah and his party did not miss the boat." Mark Twain

      by dkmich on Sun Feb 18, 2007 at 06:56:48 AM PST

      [ Parent ]

  •  A question progressives need to ask themselves (3+ / 0-)

    when thinking about Affirmative Action:
      Is it okay to raise the bar for Asian-Americans?  It happens, you know.
        If some sort of Affirmative Action is needed, it should be color blind and based on economic considerations.
        Plus, supporting it (racial preference) is a BIG political loser among working class whites.

    •  It's also inherently racist... (1+ / 0-)
      Recommended by:
      buzzsaw

      When the preference is based totally on the color of one's skin instead of a complete picture, you have a situation where a wealthy african american student would get special preference over a poor appalacian student.  (and don't think it doesn't happen--I know many wealthy and privileged african americans milk the system that was meant to help those in need instead of those of privilege). It's kind of like the reverse country club scenario, and makes the current system difficult to defend when there are so many abuses.

      The biggest problem with minority enrollment is that you can have all the affirmative action you want, but if the student is not qualified or prepared for college, they will not last very long when they are admitted.  I've seen it happen too many times.  The only effective affirmative action, is affirmatively acting on our poor quality urban and rural school systems.  Good primary and secondary education obviates the need for affirmative action in universities.

      Thanks,

      Mike

      •  The lack of preparation for college is not (0+ / 0-)

        an indication that the unprepared student is mentally deficient, (I know you weren't saying that), and the colleges need to overcome the lack of preparation.  They can add a year to tutor their unprepared freshmen and get them going in the right direction.  I have read that some colleges are doing that right now because many of their students, across the population, are unprepared in the core subjects of math and English.  Bringing local school districts up to speed is also a worthwhile goal, but it will take a long time to accomplish.  Colleges can respond faster.

        If you don't have an earth-shaking idea, get one, you'll love building a better world.

        by hestal on Sun Feb 18, 2007 at 06:14:38 AM PST

        [ Parent ]

        •  I agree with this point but not your solution. (0+ / 0-)

          Some schools will require lesser curriculum prepared students to report for summer session.  If they do well, they are admitted.  If not, they go home. It is a test, not remediation.  If someone is a whole year behind and requires tutoring and other remediation, they should be in a community college, not a 4 year university.  There is a huge difference between being educable and academically deficient and realizing in your senior year that you should have taken more college prep classes and gotten better grades,   Either they can do the work, or they can't.

          "Often it does seem a pity that Noah and his party did not miss the boat." Mark Twain

          by dkmich on Sun Feb 18, 2007 at 07:04:54 AM PST

          [ Parent ]

          •  What About the Students Who Did Well... (2+ / 0-)
            Recommended by:
            hestal, Diaries

            ...in high school but lived in school districts where there were no AP classes available, calculus and physics were not offered in the curriculum, English classes did not require students to read many of the classics, and the overall requirements for graduation were not as high as in a well-funded suburban district.  Students from poor districts do not have SAT coaches and little guidance in college application and preparation.  A student may graduate as valedictorian but still get mediocre SAT scores by 'selective school' standards.  An honors student in a poor district may have done everything by the book and excelled in his/her environment but still be academically unprepared if admitted into a selective college under an affirmative action program.  These students should have tutoring and all the support services available throughout college years because they've shown aptitude and willingness to do the work even though society has prevented them from competing on an even playing field prior to college.

            •  I think it also depends on program or field (0+ / 0-)

              of study.  Not all areas require math beyond the  basics. Studying to be an engineer, doctor elementary school teacher, or computer programmer are all different.  AP classes are an advantage, but I don't believe that only AP students ever get admitted to college.  There are differing levels of universities. Some have the highest and most competitive of admission standards and some do not.   Not everyone can or should go to Harvard or even the top ten.  There are multiple opportunities at multiple universities and the community college. One size does not fit all based on color, gender or creed.   I don't think standards should be lowered.  I think more opportunities to go to college (a free two year PS degree for all) should be offered.  As people reach varying degrees of academic excellence, they should be able to move around and participate.  If we start offering remediation at Princeton, who will pay for it?  The more support services, the higher the tuition costs for all.  Is this clear as mud?  I had a hard time trying to distinguish between opportunities and support in appropriate ways vs. opportunities and support in inappropriate and cost ineffective ways.  We always want our first string to be the best, but we always need a farm team to help everybody be there best.  They just can't be one in the same.

              "Often it does seem a pity that Noah and his party did not miss the boat." Mark Twain

              by dkmich on Sun Feb 18, 2007 at 07:54:17 AM PST

              [ Parent ]

              •  You Address All The Difficult Issues But... (1+ / 0-)
                Recommended by:
                Ira Krakow

                ...we differ on approaches to solutions.

                Controversy concerning affirmative action involves admission into selective programs.  There are university and college spaces open to all ambitious students, however, the admissions to only certain programs are the focus of the dispute.  Admission to engineering and medical schools is more competitive than other programs.

                AP classes are an advantage, but I don't believe that only AP students ever get admitted to college.  When California voted to end affirmative action in college admissions, they effectively blocked thousands of students from admissions into the most selective University of California campuses because some schools required GPAs HIGHER than 4.0 which could only be reached by taking AP classes.  Students in the Inglewood school district had to sue in order to make the classes available because otherwise they were shut out of the most desired campuses.

                 Not everyone can or should go to Harvard or even the top ten.

                True enough but society offeres benefits to those who graduate from selective colleges, primarily access to opportunities that result in higher income throughout lifetime.  Closing out entire classes of people from those opportunities furthers a social divide in the country.

                I don't think standards should be lowered.

                The admissions standards at top colleges have actually gotten MORE stringent at elite colleges in past generation as more students are afforded opprtunity to go to college and admissions pool is larger.  A large percentage of people admitted into elite universities 20 years ago would not be selected today with same credentials.

                There are multiple opportunities at multiple universities and the community college. One size does not fit all based on color, gender or creed...I think more opportunities to go to college (a free two year PS degree for all) should be offered.  As people reach varying degrees of academic excellence, they should be able to move around and participate.

                I agree that more students should and can take advantage of the various opportunities that are more accessible.   I also believe that it's poor public policy to have so many students going into debt in order to get any type of higher education.

                If we start offering remediation at Princeton, who will pay for it?  The more support services, the higher the tuition costs for all.  Is this clear as mud?  

                On this issue, you are wrong. 'Affluent' universities can easily afford to provide support services with no effect on tuition.   We're talking about tutoring and support for a small percentage of the campus, not setting up a 'university within a university.'  The financial effect is negligible.  Smaller colleges and public universities would have a bigger issue concerning budgets.  But again, it's admissions into the most selective programs that is the source of controversy and those programs are generally well-funded.

                We always want our first string to be the best, but we always need a farm team to help everybody be there best.  They just can't be one in the same.

                One goal of affirmative action is to identify and develop the untapped talent, and with proper support, nurture it into all-stars.

                •  In America we believe that it is better for (1+ / 0-)
                  Recommended by:
                  Grand Poobah

                  ten guilty men to go free rather than send one innocent man to prison.  We can argue over the particulars, but there can be no argument with the sentiment.  So it is with the argument over affirmative action.

                  I believe that it is better to admit more people, from wherever they may come, into colleges of all types, and special programs of all types.  I believe that it is better to educate 11 people and find one person who will accelerate progress for us all than to assume that what a person makes on a set of tests should forever determine his fate -- the person is shortchanged and is society.  And the benefit of educating all 11 in search of the 1 superstar is that the other 10 get an education as well.  That can't be a bad thing.

                  Our most valuable resource is our people, not because of their personalities or who their parents were, but because of the ideas they may have and put into action.  Great brains can be anywhere, and we need to give them, and all other brains, a chance to flourish.  So give 'em all books and teachers and get the hell out of the way.

                  If you don't have an earth-shaking idea, get one, you'll love building a better world.

                  by hestal on Sun Feb 18, 2007 at 08:42:38 AM PST

                  [ Parent ]

      •  It's a Big Myth That Poor Whites Don't Benefit... (2+ / 0-)
        Recommended by:
        happy camper, Diaries

        ...from affirmative action.  I know for a fact that Penn and Cornell had (have ?) affirmative action to admit students from rural areas, with the overwhelming number of admitees being white. For many years, these Ivy League schools admitted more rural students under affirmative action than African-Americans.  Other universities have similar programs.

        The biggest problem with minority enrollment is that you can have all the affirmative action you want, but if the student is not qualified or prepared for college, they will not last very long when they are admitted.

        Any genuine affirmative action program involves support services for the students once they have been admitted.  The support services also must address social as well as academic integration into the university because many students will suffer academically just from the culture shock that occurs when they arrive on campus.

  •  Absolutely (5+ / 0-)

    The mistake that people make with respect to racial balance in school admissions is in thinking that the only education you get in school is from your books and professors.  As a graduate of two different programs I think that the larger part of the value of my education came from my classmates.  First off, I was very likely a "preference" candidate myself, as I came to a major East Coast school from a tiny town in a rural state.  I knew it when I was applying, and I knew I was likely to be less prepared (and would seem less qualified) than my classmates when I got to school, and I didn't care.  I was happy to use that to access the opportunities I hadn't been able to get because of where I was raised.

    Secondly, before I went to school I had met one Jew, two Asians, and three blacks my whole life.  So was an important part of my education getting to know an amazing mix of people from all races and religions and from many different countries?  Definitely, and one I may have missed out on if the admissions department felt their job was merely to scoop off the highest 1300 SAT scores that they encountered and give them admissions letters, regardless if they were all white prep school boys who had been taking SAT prep courses since they were 6.  When admissions officers create a, yes, DIVERSE student body, it maximizes learning and life experience for EVERYONE.

  •  This is a topic which needs to be discussed (0+ / 0-)

    Heartland liberal makes the beginning of an argument which essentially says that colleges use all sorts of criteria now which discriminate.  

    For example, one student applies who can play the oboe and gets admitted ahead of a candidate with higher grades and test scores who can't play the oboe.  Does the compelling interest of the orchestra for an oboe player trump the 14th ammendment rights of the non-oboe player?  (Yes this happens...)

    Should the ability to play a sport lower one's admission threshold and generate income to the athlete ahead of a more "qualified" candidate?

    Do SAT scores correlato to collegiate success?  I think the studies say that they do not corellate with collegiate success.  

    Are grades given on the same standard at different high schools?  I think they are not.

    Does this mean that a matrix with SAT scores and GPA should allow one candidate to claim that they have higher "qualifications" for admission than another?

    Even if you don't buy arguments around family net worth and family intellectual capital as legacies of institutional racism (and I do buy those arguments) the quote that makes the issue clear in the orginal post is here:

    In the Grutter case, the Court held that creating a racially diverse student body was enough of a compelling governmental interest, and that the University of Michigan had crafted their policy to further it in a legally correct way, that the policy was enough to trump Barbara Grutter's claim that her 14th amendment rights were violated.

    So the interest in racially diverse balance was enough to justify using race as a factor.

    Ok, so the troubling hypothetical.  Two students who have the same scores and grades, who went to the same high school, and live right next door to each other in the same house with parents in the same social class.  

    It's a troubling hypothetical.   On the other hand, we know what the impact is when you remove race as a factor altogether, and most of us would not want to see the ongoing educational legacy that creates.

    Want to take a tour of some high schools with majority minority populations and see the "equal" education they are getting 50 years plus after Brown?

    "We will now proceed to construct the socialist order."

    by 7November on Sun Feb 18, 2007 at 05:08:57 AM PST

    •  I was admitted to a university in 1957 (0+ / 0-)

      because a wealthy donor had given the college a huge fund to use for scholarships for students who were willing to major in nuclear physics.  The college could not find people who had the grades and the willingness, and they were in danger of losing the scholarship fund.  I had no idea what I wanted to major in so I spoke up.  That sounds pretty discriminatory to me, but I got a college education out of it.

      If you don't have an earth-shaking idea, get one, you'll love building a better world.

      by hestal on Sun Feb 18, 2007 at 06:18:26 AM PST

      [ Parent ]

      •  I think that it is different. (1+ / 0-)
        Recommended by:
        another American

        You benefitted from a private scholarship that was dedicated to a field, not a person or a person's demographic. Nursing colleges only accept students interested in nursing.  That is not discriminatory.

        "Often it does seem a pity that Noah and his party did not miss the boat." Mark Twain

        by dkmich on Sun Feb 18, 2007 at 07:09:11 AM PST

        [ Parent ]

        •  Actually, by definition, it Is... (1+ / 0-)
          Recommended by:
          hestal

          discriminatory. But it's an accepted form of discrimination, because people believe they have a theoretically equal chance of benefiting from it.

          "Just give me an easy life and a peaceful death" -The Sundays.

          by Diaries on Sun Feb 18, 2007 at 07:27:54 AM PST

          [ Parent ]

  •  The names of students who are of college age (0+ / 0-)

    should be placed in a giant bin.  The slots available for incoming freshmen at all colleges should be placed in another bin.  Then we should spin the bins from June 15th until July 4.  On July 4 we should begin drawing from each bin.  One student, one available slot and match them up.  Unless and until this completely random, but completely fair, process is implemented I think colleges should use whatever criteria they need level the playing field.  The question, to me, is not who gets admitted, but who gets out and is able to contribute to society.  

    If you don't have an earth-shaking idea, get one, you'll love building a better world.

    by hestal on Sun Feb 18, 2007 at 06:05:09 AM PST

  •  Under what conditions (0+ / 0-)

    should the practice of affirmitive action be ended as policy?

  •  Is Hispanic or Latino a Racial Group? (0+ / 0-)

    I always wondered - when colleges or the government asks what your race is, they usually include a designation like Latino, Hispanic, or Latin American.

    Is this a racial grouping?  Does the owner of a coffee plantation in Colombia have anything in common with the coffee picker other than language?  And why should Spanish language speaking people be given any preference over people who speak any other language?

    There's a group called La Raza, a group which seems to advocate for people who speak Spanish, as if that's a preferential class.  La Raza means "the race".  Do people who speak Spanish as a first language qualify as a race?  

    •  Hispanics/Latinos Are an Affirmation Action... (0+ / 0-)

      ...group that is given preference in admissions.  However, the preference does not apply to foreign students.  The preference does not have to be 'racial' in order for affirmative action to apply.

    •  Gender (female) is also a protected class. (0+ / 0-)

      Black, poor, handicapped, and female is a big ticket to affirmative action classications such as minority owned business, which is trumped by female minority owned business.  

      "Often it does seem a pity that Noah and his party did not miss the boat." Mark Twain

      by dkmich on Sun Feb 18, 2007 at 07:13:44 AM PST

      [ Parent ]

  •  The solution is clear; (0+ / 0-)

    if a person makes even a modest effort in the formative years, they will make it to some kind of college.

    My heart goes out to all who suffered needlessly because of this ruinous occupation. End it now.

    by Paul Goodman on Sun Feb 18, 2007 at 07:08:04 AM PST

  •  Affirmative Action is unconstitutional (0+ / 0-)

    But it was necessary.  It is an open question whether or not it should be taken away soon.

    Affirmative action is a policy that is based solely on race, and so it discriminates against those people who are not members of that particular protected race.

    Race of course is a naturally defined category.  In other words I can't choose to be a race.  Race has nothing to do with my actions or how I rationally try to determine myself.

    In addition to the Equal Protection Clause of the 14th Amendment, the constitution is intoned by the preamble to the Constitution, the Declaration of Independence that states (from the Liberal tradition) that:

    That all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these are life, liberty, and the pursuit of happiness; that, to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed; that whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it, and to institute new government, laying its foundation on such principles, and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness.

    The method of affirmative action clearly violates the letter of the above given Constitutional protections, while ironically the objectives of Affrimative action try to fullfill the spirit of these protections.

    Affirmative action was clearly meant to be some form of practical compensation for America "getting it terribly wrong" for so long.  

    there's a doctrine called strict scrutiny, which means that the government has to prove a "compelling governmental interest" if it wants to use a racially based standard.

    The above instrument is very interesting because it isolates the bones of what I have been calling a SCAFFOLDING STRUCTURE.

    A scaffold of course helps a structure that cannot stand on its own stand.  The goal for America should be for the Black community to stand on its own.  When the Black community can stand on its own with out the scaffold then the scaffold should be removed.

    Affirmative action should be considered now a SCAFFOLDING STRUCTURE, and should have always been considered a SCAFFOLDING STRUCTURE.  It is and has always been a necessary evil.  

    So the only question is:

    Q:  At what point will the government consider that racial quotas are no longer a "compelling governmental interest"?

    Also I disagree that there is any scaffolding structure need for class based preference.  It is an unnecessary challenge to the letter of the constitutional.

    •  this is becoming less and less true (1+ / 0-)
      Recommended by:
      another American

      Race of course is a naturally defined category.  In other words I can't choose to be a race.  Race has nothing to do with my actions or how I rationally try to determine myself.

      Tiger Woods, Barak Obame, Halle Berry...

      My children are

      Polish/Irish/English/Italian/Spanish/Chinese/Filipino.

      They can choose to identify as White/Asian/Hispanic...

      And according to the Evolution dudes, we can all trace ancestry to Africa, so we're all African Americans.

    •  Since the 3 Civil War amendments (13, 14, & 15) (1+ / 0-)
      Recommended by:
      Grand Poobah

      which ended slavery, extended equal protection and due process to people in general and former slaves in particular also included provisions giving Congress the power to enact legislation to enforce them, and arguably affirmative action has been necessary to prevent disctimination and its results, it can reasonably be argued that affirmative action as authorized by Congress would be constitutional.

      Furthermore, it would be a stretch to say that affirmative action by private educational institutions would be unconstitutional even absent those provisions.

      And as you rightly say, without it the effects of past and current discrimination would have lasted even longer than they already have, and hence some such action has been necessary in fact to enable certain groups to get the equal protection that they are entitled to.

      As far as class or income goes, since these are not "suspect categories" for most constitutional analysis, I see no constitutional bar to taking them into account in college admissions.

      Of course with the appointment of Alito for the seat held by O'Connor even the minimal affirmative action allowed by prior rulings (under what I think is a less compelling rationale than its necessity to combat the actual effects of discrimination) will no longer be found constitutional by the SCOTUS.

  •  This is a troubling issue for me (0+ / 0-)

    Because I honestly have no idea what to do about it.

    I do think one of the great undiscovered countries for the Democratic Party, is the absolution of all outstanding school loans. It would be hard in the short term for our national debt, but in the long term, it would create a whole new faction of the middle class, and increase consumer spending.

    That being said, I honestly don't know what to do about race based admitions criteria. There's just no proper way to equate how external local factors like underfunded schools, crime, violence, and poor neighborhoods can directly impact someone's GPA and SAT scores - on an individual, case to case basis.

    And that's the problem.

    On paper, the white kid's numbers are great. On paper, the black kid's numbers mediocre. But, how much of that is a result of an unstable life? And how do you prove that in any quantitative way?

    You really can't. And yet, I don't think it's right to reject a higher score, simply based on race. To me, that defeats the very equality that we're all striving for.

    The only real solution is to pump more money into our school systems, and bring jobs back into the inner cities. Make the playing field BEFORE the test equal, and then take the better student.

    But, that takes 15 years.

    In the short term, Universities could use regional, or high school based qoutas to increase classroom diversity, without mentioning race as a factor. So, said University will take 5 students from whatever high school services the Robert Taylor Homes in Chicago. Maybe another 5 students from Gary, Indiana. Another 5 from the poorest school in Laredo, Texas. So on, and so forth.

    It's an incomplete thought, but I don't really know.

    I went to a university with 75,000 students. Nearly half of them were black, Indian, and chinese. I think I'm a better man because of the diverstiy that I experienced; coming from an affluent, mostly white suburb.

    Baby, you're the kind of gal, who makes a guy wanna dig his own grave...and lick the shovel clean.

    by harrylimelives on Sun Feb 18, 2007 at 07:33:28 AM PST

    •  The Texas Affirmative Action Plan (1+ / 0-)
      Recommended by:
      harrylimelives

      After a federal court struck down affirmative action in certain southwestern states, Texas adopted a plan under which the top students (a guaranteed percentage) in each school district would be guaranteed admission into the University of Texas system, regardless of standardized test score.  The plan was hailed by many as a solution because schools are still segregated and in certain school districts the top students will always be black or Hispanic.  The plan's detractors say it discriminated against students from more academically competitive districts because many of the top students in the predominantly black and Hispanic districts still fail to meet UT admission criteria.  I think the Texas Plan is worthy of consideration elsewhere because it challenges the state to raise the bar in poorly performing districts without penalizing the students who are high achievers under the circumstances.  President Bush endorses this approach (or so he has claimed in the past).

  •  India's Version of Affirmative Action (0+ / 0-)

    A while ago, I wrote an article about India's version of affirmative action.

    India's version of MIT or CalTech is called the Indian Institutes of Technology.  There are about 15,000 undergraduate places available.  Over 3,000,000 students take the test for IIT entrance, and for a long while admissions was based solely on the test.  Given India's huge population, the odds of entrance are exceedingly long.

    The Indian government proposed reserving 49.5% of the IIT seats to a group of castes such as the Untouchables, many of whom have been subject to discrimination in the past.  The castes must be recognized by the government as OBC (short for "Other Backward Castes" - talk about political incorrectness.  Many Indians who got into IIT by passing the test are up in arms.

    This makes our affirmative action pale in comparison, in my opinion.

  •  It's necessary to (0+ / 0-)

    get URMs into colleges where they'll get additional connections to get the leg up they need it advance in society...but excessive.

    Look at lawschoolnumbers.com--you'll find just how wide the LSAT and GPA gaps are.  The 160 is pretty solid, but not competitive at all at Georgetown for a white person, let alone the 2.3, even considering the other factors.

    While the field may very well level out a bit once they get closer to the same environment as their peers, they also face a colorblind grading system in which their admission statistics do not bode well in the class rankings.  (I do think the connections of being in a better law school help, and I laugh when people who argue the "mismatch effect" also argue that going to a better school causes URMs to flunk the bar at higher rates.)

  •  Quotas, Affirmative Actions, Race, Class (0+ / 0-)

    The tangled responses by people of good will to these questions stem, I suggest, from the fact that values we hold dear are in tension. Speaking personally, I

    • embrace the fundamental promise of America in the Fourteenth Amendment, namely, that all of us are entitled to "equal protection of the laws."

    • recognize that America has a history of slavery and racism.

    • recognize that millions of Americans are the descendants of immigrants who had no involvement in slavery or in creating the racist structures that succeeded slavery, and indeed who themselves were victims of discrimination on their arrival in this country.

    • recognize that setting a quota or floor for members of group A necessarily involves setting a ceiling or quota for members of other groups.

    • believe that, although racism is not dead in this country, millions of Americans are disadvantaged as much or more by socioeconomic condition (class) as by race or ethnicity.

    Where I come out on all this is supporting affirmative action in the plain meaning of those two words: taking affirmative acts to improve the life chances of the less well-placed in our society. (See John Rawls, A Theory of Justice.) So long as the distribution of life-chances is skewed by race, ethnicity, gender, etc., members of these populations will benefit disproportionately, and IMHO it is right that they should do so. But the distributive principle is not tied to race, ethnicity, or gender.

    Of course, this only sketches a general approach. As often is the case, the devil is in the details.

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