A Legal Analysis of Affirmative Action Policies
Affirmative Action:
Did the Supreme Court End a Beneficial Education Policy?
The issue of affirmative action is not new by any means. The policy dates back approximately 60 years, and its impact continues to govern our educational and professional environment. While some see affirmative action programs as much needed to achieve equity, others see them as discriminatory. The fight about the issue has been a national discussion for quite some time. In fact, in 2020, Proposition 16 in California sought to enshrine legality in using “diversity” to determine public employment and education decisions. The vote fell just short of passing, but the split vote shows the clear division in perspectives. More importantly, in 2023, the Supreme Court ruled on a landmark case, Students for Fair Admissions v. President and Fellows of Harvard College, which ruled that race cannot be considered in college admissions. The case marked the end of affirmative action programs in education, but supporters of affirmative action feel the decision ended a beneficial policy.
How did We Get Here?
To understand the debate in the Supreme Court in 2023, one must first go back to 1954 when the Supreme Court ruled on a different milestone case: Brown v. Board of Education of Topeka. Brown v. Board ruled that the precedent set in Plessy v. Ferguson of “separate but equal” in reference to segregation was wrong. The precedent was reversed in education and began a period of racial integration. The Civil Rights Act of 1964 helped to codify the integration effort, especially Title VI which prohibited racial discrimination in schools . However, despite the massive leap to equality, the decades of segregation in schools left minority students worse off than white students. As admitted from the Brown v. Board decision, the quality of segregated schools was disparate to the disadvantage of minority students. Therefore, the preparedness of minority students was lesser than that of white students of the same grade level. Thus, educational success would not be equal unless there was some way to either help minority students catch up or enforce diverse outcomes considering pre-desegregation preparedness. The latter became known as affirmative action policies.
When students applying to colleges were no longer students who had experienced educational segregation, affirmative action was challenged. Allan Bakke sued because of racial quotas in Regents of the University of California v. Bakke, which put a restriction on affirmative action, ruling that the only decisive factor cannot be race but may be a partial factor. That standard remained in place until the aforementioned case, Students for Fair Admissions v. President and Fellows of Harvard College.
How Does Affirmative Action Violate the Law?
In order to achieve the more equal outcomes that affirmative action promises, there must be unequal treatment in admissions. There must be a different set of standards applied because, in the absence of it, past inequalities show themselves in the unequal outcomes described above. Because the unequal treatment is on the basis of race, there are concerns that the result of such policies is racially discriminatory, regardless of their benevolent intent.
To determine if basing admissions decisions on race are discriminatory, even if it is not the only consideration factor, one must check with the statute that governs that: the Civil Rights Act of 1964. The Civil Rights Act of 1964 Title II Section 201(a) defines what protected classes are. Among these protected classes are race, color, religion, and national origin. Different standards of treatment based on one of these classes are discrimination under that law. In the case of affirmative action, there is a different standard of treatment where admissions standards are concerned. Asian and white students are held to higher academic standards than other racial groups in order to be accepted into the same school. Note that the definition of the protected classes in Title II described previously does not include that a requirement for discrimination is for the victim to be a minority. In fact, in the Bakke case establishing that race cannot be the sole factor, the plaintiff was alleging discrimination based on his white race. Bakke was successful in the Supreme Court.
Title VI Section 601 states that “[n]o 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.” That assertion is an important one because there are many colleges and universities that receive federal funding. Many of them are the most prestigious schools that use affirmative action to meet diversity goals that their competitive standards would not ordinarily meet. Given that these schools receive federal financial assistance, they should be prohibited from discriminating based on race because race is a protected class.
The words from the opinion written in Brown v. Board also concur with that conclusion. The opinion states, “In more recent cases, all on the graduate school level, inequality was found in that specific benefits enjoyed by white students were denied to Negro students of the same educational qualifications.” Given that discrimination must only apply to protected classes and not simply minorities, the inequality discussed in the opinion would result in the same conclusion if the race of each party was reversed holding all else equal. If that reversal is applied, the quote begins to describe the effect of affirmative action. The specific benefit is admission. Asian and white students of the same educational qualifications are denied admission to a school under affirmative action when a black or Hispanic student of equal educational qualifications would be accepted due to different admissions standards. It is a scenario in direct contrast to the racial double standards that Brown v. Board sought to eliminate in enforcing “equal protection of the laws” given to every citizen per the Fourteenth Amendment.
The Supreme Court recently agreed with that assessment in Students for Fair Admissions v. President and Fellows of Harvard College. For the same reasoning, the Supreme Court held in a 6-3 decision that using race as a factor in admissions violated the principles that brought about the Brown v. Board decision and violated the equal protection under the law that the Constitution affords.
Ethical Analysis
Affirmative action is discriminatory and immoral. The explanation above clearly shows proof that it is discriminatory and therefore unconstitutional and in violation of the Civil Rights Act of 1964. Moreover, the benevolence behind the policies still does not justify the immorality in their actions.
To judge college applicants most fairly, they should be judged on factors within their control. Test scores, GPA, extracurriculars, and writing prompts are all within an applicant’s control to make the best application possible. However, race, color, religion, and national origin are all out of an applicant’s control. To weigh one student over another for status in one of those protected classes is to diminish personal responsibility. Rather, admissions decisions should follow the dream explained at the Lincoln Memorial when Martin Luther King Jr. said, “I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character.” Factors within an applicant’s control demonstrate the content of his/her character. The color of the applicant’s skin says nothing meaningful about the student’s character.
The College Board attempted as recently as 2019 to engrain the SATs into race-based admissions, as well. A much-maligned proposal that never became enacted due to pushback, the Dashboard Adversity Index sought to give a numerical score to inform admission officials about perceived adversity. That would measure wealth in the area of residence, historical performance of the high school/district, race, and more. None of these factors are within the control of the applicant. Every factor would inherently punish students for being born in the wrong place or for being the wrong color that the admissions team prefers. It would punish parents for taking their children to wealthier and more successful schools to give them a better educational foundation. These are the immoral consequences of overcorrecting for the past.
The process to admit based on race has not lived up to its intentions. Asian students were hurt along with white students. In fact, Students for Fair Admissions is a group meant to represent Asian students. That final decisive ruling to end affirmative action was ruled based on discrimination against both white students and Asian students. To discriminate against Asians as if it is correcting some past injustice (the main supporting point for race-based admissions policies) is to ignore the past injustice that Asians have also faced in America. More specifically, Asian students suffered from the same discrimination as other minorities did in the segregated school era. The Gong Lum v. Rice case from 1927 ruled to uphold the precedent set in Plessy v. Ferguson in application to Asian students and claimed that Asian students may be classified as “colored.” As a result, Asian students were often sent to colored schools along with other minorities. Affirmative action policies seek to right that wrong practice but discriminate against a group that suffered from the practice.
For these reasons, race-based admissions are a deep wound in the education system that the Supreme Court has allowed to start the healing process, while proponents of affirmative action have only argued in a roundabout way to justify the same discrimination that the civil rights movement fought so hard to eliminate.
Moving Forward
When race-based admissions were established, there is no doubt that there was good intent behind it. To correct past injustice and bring the education system closer to achieving equity is a noble cause in theory. In practice, it discriminates against people who are undeserving. To correct the residual inequalities, they must be addressed in a way that does not inherently punish others. In terms of education, the fairest approach is blind admissions. Admissions decisions should be based on only what is truly representative of the individual and not broad ideas on what would be equitable for a large group as a whole. Mentions of race should be limited to only where it is necessary. For example, an applicant may have a story of experiencing racism that he/she wants to use in a personal statement. The fact that the applicant is a minority or not, however, should never be the basis or even a factor in determining something so critical as college admissions. As a result of the Supreme Court’s actions to strike down race-based admissions, the educational sphere has become just.