Expert: Michael Troy - 4/5/2005

Question
Dear Mr. Troy,

Would you take the time to answer and discuss the following questions?  Thank you

In your opinion, does affirmative action lead to discrimination by violating the 14th Amendment or the Civil Rights Act?  Could you expand on the topic specifically regarding admissions into colleges and universities?  Thank you.

Answer
Hi Daniel,

"Affirmative Action" is a broad and very vague term.  At it's most basic level it means taking steps beyond simply not discriminating against certain groups to help those groups increase their participation in employment or education.  

I also need to point out at the outset that the 14th Amendment limitations only apply to public schools.  The Constitution does not prohibit private schools from engaging in whatever affirmative action they like, or in traditional discrimation against minorities for that matter.  However, any school accepting Federal funds is bound by pretty much the same non-discrimination rules as anyone else by Title VI of the Civil Rights Act of 1964.  Since it is virtually impossible to run a school without those funds (which include student aid or guarenteed loans) the effect is that almost all schools are bound by anti-discrimination rules.  Of course, Congress could change that for private schools any time it wants.  

Some very basic forms of "affirmative action" are not really controversial at all.  For example, a school might re-evaluate the criteria it uses for admission that might have some hidden bias against minorities.  For example, a preference for admitting children of alumni might disproportionately benefit some white applicants because most alumni are white.  The task of determining that disadvantage and getting rid of that preference would be a perfectly legitimate form of "affirmative action."  Another might be making sure recruitment efforts do not focus disproportionately on high schools that have primarily white students but make sure many minority high schools are included.  These are examples of the non-controversial forms of affirmative action to which almost nobody objects, and are perfectly legal.

At the other end of the spectrum are racial quotas.  This is where a school has a separate admission system for different racial groups and admits a fixed number from each group without comparing them to one another.  The Supreme Court has repeatedly held that such systems are in violation of the 14th Admendment for public colleges and universities.  This is clearly racial discrimination as it treats people differently based on race, regardless of any good intentions.

Most controversies today involve "racial preferences."  This is when a school gives some preference to an applicant simply because of the applicant's race.  This might mean adding extra points to whatever point system the school uses to admit people.  It might mean using a lower point standard for certain groups.  It could mean many other more subtle methods designed to give preference to members of one racial group over others.

The Courts had held for many years that some form of preferences in favor of minorities are constitutional only for a limited period of time in order to make up for past discrimination against those same minorities at that very institution.  This is called "remedial affirmative action."  A school could not, however, give preference to minority applicants in order to counteract some perceived societal discrimination or some long ago historical discrimination.

Recently, however, the Supreme Court has expanded the legal use of racial preferences for minorities.  In two recent cases involving the University of Michigan, the Court held that schools could give preferences to minority applicants in order to make sure they had a diverse student body.  They relied on educational experts who argued that having minorities in the school was important to the educational process.  The Court when on to hold that such preferences could not be a specific numerical point system but could somehow be a part of the overall consideration of the applicant.  This conclusion led them to strike down the undergraduate plan of adding points to a minority applicant's admission score, but upholding the law school's policy which seemed to have just about the same effect on admitting minorities but which was not written down and clearly applied in a consistent and well documented manner.

That is the state of the law as I understand it.  Since you asked for my personal opinion, I'll be happy to share that as well.

Racial preferences, in favor of whites, blacks, or any other group are by definition discrimination.  That is simply a fact, not opinion.  The definition of racial discrimination is to treat differently based on race.  Saying something is discrimination is not saying it is good, bad, legal, or illegal.  It is simply the definition of what is happening.

My personal opinion is that such preferences are unconstitutional.  The 14th Admendment as interpreted prohibits any discrimination.  You cannot say that government action is ok against one group but not another.  If it is unconstitutional to give preference to non-minority students (which is unquestionably the current state of the law) then it should also be unconstitutional to give those same preferences to minority students.  In my view, everyone should be treated equally without regard to race.

The Court's opinion in the Michigan cases really left me scratching my head.  If discrimination in order to get more diversity is ok, why is it ok just to use it a little bit? Why can't schools give quite large and obvious preferences if necessary?  Also, if the court allows discrimination because "educational experts" say diverisity is important, what will stop them when another school puts up an expert that says they must discriminate against minorities because in his or her opinion too many minorities harm the educational process?  Quite simply my view is that the 14th Amendment says there shall be equal protection of the laws; not equal protection unless someone comes up with a reasonable argument as to why unequal treatment is better.

I hope this helps!
- Mike