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.