Sometimes, losing, like parting, is such sweet sorrow.
So it is with the case of affirmative action, which so many of us for so long have embraced as a necessary evil, but which will not be mourned for long.
Three basic arguments have been made for providing for exceptions to the rules by which meritocracy is supposed to work, namely admitting students to colleges, medical and law schools even though they did not score enough points on their own, by test scores and grades, by awarding them points for being avatars of their race, so they are admitted not because of their own personal merit, but because others of their group--a group defined by White people--have been unjustly treated in the past.
The arguments:
1. REPARATIONS: Blacks, Negroes, African Americans, whatever you wish to call them, have been denied admission to universities and graduate schools simply because they are black, for generations, for at least 100 years, and now it's time to admit more of them simply to adjust the numbers and to make amends to this group. (Unmentioned in all this, of course, is the far more numerically important discrimination against Blacks being admitted to unions, to trades, to become firemen, policemen and other jobs which would have been numerically far more important to far more more Blacks than admissions to the 0.03% of students who get into Ivy League institutions.) But this is the case of individuals benefiting who would not have been afforded opportunity.
But the case at hand is about Affirmative Action in universities and it's about the small number of students awarded coveted places, "the glittering prize" of admission at the elite institutions of Harvard and University of North Carolina.
2. SCHOOLS BENEFIT: The schools themselves benefit from the presence of Black students because they provide a diversity of opinion, perception, experience. This is a harder argument for schools of engineering and medicine, of course, where the science is not much affected by life experience.
3. SOCIETY BENEFITS FROM DIVERSITY: because schools should look more like the larger society and Black medical students will go practice in Black ghettos and Black lawyers will go help Black communities. This is the test of "a compelling governmental interest." Under the idea of "strict scrutiny" any exception to equal protection must prove there is a compelling interest and also that the scheme devised to achieve this is "necessary" i.e., there is no other way of achieving this result.
Whenever possible, all citizens should read the actual opinions as written by the justices. When you do that, the opinions become far less jarring, and, in fact in this case, one might argue, the opinion becomes persuasive.
Reading the opinion by Chief Justice Roberts, one cannot avoid seeing his profound sympathy efforts to end racism in American society.
1. He begins by excoriating the Supreme Court for aiding and abetting institutionalized racism by embracing "separate but equal" in Plessy v Ferguson."The inherent folly of that approach--of trying to derive equality from inequality--soon became apparent...By 1950, the inevitable truth of the Fourteenth Amendment had thus begun to reemerge: Separate cannot be equal."
As Roberts outlines the past, as it led to efforts at Affirmative Action, his sympathy for the goal of thwarting racism could not be clearer.
Of course, one of the signal victories for ending racial segregation, in the case in schools, was Brown v Board of Education, but within that decision was contained a real problem for Affirmative Action.
Brown v Board of Education posed a problem for Affirmative Action because it said you cannot use race to justify unequal treatment before the law, as the 14th amendment insisted.
If you could not use race to thwart the aspirations of any race, how could you then turn around and use race to advance the prospects of the members of a race, now favored, while diminishing prospects for members of other groups?
He outlines a series of decisions about busing, the use of public beaches, and even laws forbidding interracial marriage (Loving) which demanded that businesses and institutions serving the public be color blind. "Eliminating racial discrimination means eliminating all of it," Roberts concludes. "The guarantee of equal protection cannot mean one thing when applied to one individual and something else when applied to a person of another color." (Bakke)
2. He observes that devising programs which are designed to specifically redress grievances of Black Americans has meant and will mean that other groups, like Asians, will not benefit, and, in fact, will be injured because the spaces they might have had are given instead to Blacks.
Who are judges to judge which groups should be favored? As he notes, "By grouping together all Asian students, for instance, respondents are apparently uninterested in whether South Asian or East Asian students are adequately represented, so long as there is enough of one to compensate for a lack of the other."
And he raises other concerns which never occurred to me: "How are applicants from Middle Eastern countries classified?...Indeed, the use of these opaque racial categories undermines, instead of promotes, respondents goals. By focusing on underrepresentation, respondents would apparently prefer a class with 15% students from Mexico over a class with 10% students from several Latin American countries."
He observes wryly, "Universities may define their mission as they see fit. The Constitution defines ours...As this Court has repeatedly reaffirmed, 'racial classifications are simply too pernicious to permit any but the most exact connection between justification and classification.'"
3. "Our acceptance of race-based state action has been rare for a reason," Roberts observes. "That principle cannot be overriden except in the most extraordinary case."
4. In his Bakke decision, Justice Powell said that trying to right past wrongs meant favoring members of one racial group over another because of their race. The idea this would right past wrongs was "an amorphous concept of injury that may be ageless in its reach into the past." Which is to say, favoring Shamika today does not help her mother or grandmother who were denied college admission.
And he shrewdly noted increasing Black medical students had never been shown to increase Black doctors in Black communities--Black doctors go where the money is, and that is not ghettos.
And the idea that Black students added a benefit to a technical school because of their life experience was hard to argue. Your life experience does not help you build a better bridge, calculate the trajectory of a rocket or remove an appendix.
Later Supreme Court cases fretted about "illegitimate stereotyping," which is to say, how do you know a particular Black student will add anything of value to a school, just because he or she is Black?
And then there is the problem of when is enough? Will Blacks still be preferred at Harvard or in medical schools 100 years from now?
5. There is also the problem of whether AA is a classic "wrong end of the funnel" solution. Which is to say, if you want more Black doctors, you cannot begin when students have fallen behind during their 4 years in college and then simply thrust them, unprepared, into medical school, or even earlier, placing unprepared students to compete at Harvard College, where the other 0.3% of accepted students have been competing from grade school and honing their skills for years before they arrived at Harvard.
6. Roberts asserts Harvard and UNC failed "to articulate a meaningful connection between the means they employ and the goals they pursue." If the idea of Affirmative Action is to make today's Black students whole, you still haven't fixed what was lost before they matriculated. If the idea is to improve life on the campus, you have to show how having more Blacks in the engineering department or the medical school has done that. And if you want to improve medical care or legal assistance in the Black community, you have to show how having more doctors at Harvard Medical School or Harvard Law has done that.
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Of course, the big loophole Roberts left is the college can admit a person who has personally overcome adversity, shown character and resilience by growing up in a ghetto and still getting good grades, and so the applicant, who comes from the ghetto has a better life story to sell to the Admissions committee. But then he gets in not because he is Black, but because he has overcome the disadvantages of being Black.
So, in the end, Affirmative Action may morph into "Queen for a Day," that 1950's TV show where the person who told the most tear jerking sob story won a slew of prizes from the great American cornucopia if she told the most compelling story of having risen above adversity. The final shot always showed the woman with the crown on her head, tears rolling down her face, smiling through her agony.
