Expert: Michael Troy - 7/21/2005

Question
A. In a society which suffers from a minority racial imbalance due to racial discrimination de-facto, should there be room for an affirmative action program within a specific academic institution that has certain representation of that racial group.
B. Is there, or should there be any difrence between state-funded institutions and non-state-funded.

Answer
Hi Yaniv,

I suppose it depends on what you mean by "affirmative action."  This rather vague phrase can be used to refer to any action designed to aid minorities.  Some forms of affirmative action are quite uncontroversial, such as taking steps to go over admission policies to see if there are unintentional barriers to minorities.  Few people have any objections to those forms of affirmative action.

The real debate is over racial preferences or racial quotas, where admissions boards create different standards for minority applicants or create reserved spaces for a certain number regardless of qualifications.

The US Supreme Court has held that any preference for purposes of racial balancing is illegal discrimination.  Recently, the court came out with a rather odd decision involving the University of Michigan.  It held that Schools could consider race for purposes of having a diverse student body which the school argued was necessary to the educational experience.  However, the preference could not be too great and could not be used in any systematic way, such as adding a certain number of points to an applicant's score.

This is in contrast to earlier cases where courts had consistently held that any racial discrimination was illegal, even if there was some logical reason for such discrimination.  Even stranger, the necessary 5th vote of Justice O'Connor indicated that while such preferences were constitutional today, they would somehow become unconstitutional in about 25 years.  This left a lot of lawyers scratching their heads in confusion.

State-run schools are Constitutionally barred from racial discrimination under the 14th Amendment, with exceptions created by the Courts such as in the Univ. of Michigan cases.  Private schools that receive Federal funds, including any students that get financial aid, are barred from discrimination under Title VI of the Civil Rights Act of 1964.  There are only a handful of colleges in country (I can only think of one, Bob Jones University) that refuse such funds.

That is the law, the rest of what follows is my personal opinion.  Personally, I think all public institutions, including schools should be barred from any form of racial discrimination, including racial preferences in favor of minorities.  While such plans are well motivated, they have the effect of creating even more harm against those who fail to gain admission because f the preferences.  Simply because the average white person is better off than the average black person, that does not mean every white is better off than every black.  There are many poor whites who come from underprivileged families who deserve just as much a chance to make it as many blacks.  Presuming those poor whites have less to offer is an inherently racist assumption.  There are many ways to ensure a truly diverse student body based on a students wealth, parents' education, where they grew up, etc. without resorting to race.  Racial preferences have more to do with pleasing certain interest groups than any real educational benefit.

As for private schools, I think there was a time when laws banning discrimination did a lot of good.  However, if those laws were repealed today, I think many more schools would put in place much more explicit racial preferences for minorities than would favor non-minorities.  I think it would be interesting to see what would happen and to let the free market resolve the issue.  However, given the political climate, I don't think that is realistic.  What I find very wrong is a law that says it is OK to discriminate against one group, but not another.  That, to me, is the very definition of an equal protection violation.

I hope this helps!
- Mike