2003 Year in Review

Affirmative Reaction

The affirmative action programs in education and in business came out of the tumultuous “sturm und drang” of the mid-sixties and early seventies. The anti-Vietnam war, pro-civil rights, women’s liberation, and youth-oriented hippy movements shook the very constitutional and moral grounds of the American nation. In a few short years, one tragic event after another seemed to signal the beginnings of fundamental changes in the nation – in its political, social, military, and moral makeup. Roughly speaking, the period of disaffection with staid American life began with the assassination of President John F. Kennedy in November 1963 and faded with the exodus of American troops from Vietnam in 1975.

From this turbulent era, laws were passed and programs were initiated to deal with a host of political and social ills, from voting rights to social services. Voting rights irregularities and restrictions such as poll taxes and voter competency tests were eliminated in states that had them. Public and private institutions, organizations, and corporations were encouraged with government incentives to open their doors wider for women and minorities to challenge the supremacy of white males in the military hierarchy, in the education administration, and in corporation offices and board rooms.

Some of the issues raised have been resolved; some are still pending. Affirmative action in higher education (particularly in graduate schools), however, was a hot point of debate when Congress enacted it, and it is a hot point of dissension to this day. The Supreme Court has had opportunities to come to terms with the issue, but has chosen to side-step a conclusive decision. In its 1978 Bakke ruling, the High Court narrowly defined the issue: The majority of the Justices determined racial quotas are unconstitutional and universities can not use quotas in defining its student body. But in a dissenting opinion, Justice Lewis F. Powell ruled that race may be considered as one factor in determining admissions to schools. Now the contentious issue is before the Court again with oral arguments scheduled in March.

Three students at the University of Michigan have petitioned the Court to uphold a lower court decision that the university’s graduate admissions standards – while not called a quota – are in truth a quota in the manner in which points are given for race – e.g., race receives twenty points on the university’s scale, but test scores receive only twelve points; in effect, white students, all other factors being equal, have a twenty point disadvantage from the outset when applying for admission. These students contend the university’s standards violate the equal protection and due process provisions of the Constitution by denying them parity consideration.

Obviously, the rhetoric both from liberals and conservatives has been hot and heavy. The affirmative action programs, designed to increase the number of minority students in undergraduate programs and in graduate schools, are “a remedy for past discrimination and racism” towards blacks in America, according to Roland S. Martin, a noted columnist. Secretary of State Colin Powell, while not as vehement in his perceptions of past racial injustices, concurs with Martin in maintaining affirmative action in education admissions until “the playing field is level.”

In sharp contrast to Martin and Powell, Ward Connerly, a black former University of California regent who has vigorously opposed affirmative action, asserts black students suffer because of affirmative action. In 1997, he said, "I have met more middle-class, talented black kids in the last two years who have conveyed the attitude, 'Without affirmative action, I am doomed,'" Connerly noted. "That just tells me that the rhetoric about affirmative action being essential to the black middle class has become a self-fulfilling prophecy." In essence, Connerly feels the programs are demeaning to the intelligence of blacks, but he senses that many blacks see the affirmative action programs, not as a temporary, short-term policy useful until the playing field becomes level, but as an entitlement, comparable to Social Security or Medicare.

Last week, President Bush through the Department of Justice took the side of the students and urged the Supreme Court to strike down the race-conscious admissions policies at the University of Michigan. According to Bush, there was a better way to achieve racial diversity in public higher education. Bush’s approach: Allow all students who graduate near the top of their high school classes to attend state universities, no matter how bad the school or how low their SAT scores. This “Texas Plan” or percentage plan is based on a single factor. To some critics, however, the Texas Plan and other like it are open to the same kind of constitutional attack now aimed at the Michigan plans. That is because, said Laurence H. Tribe, a law professor at Harvard, the Constitution prohibits deliberate racial discrimination, even if it is indirect.

And this is the crux of the matter. Affirmative action is by any stretch of the imagination unconstitutional. In an article for Atlantic monthly, November 1977, prior to the Bakke decision, McGeorge Bundy makes an eloquent plea for affirmative action. Yet, Bundy asks the Court “to make access to the learned professions a reality for nonwhites. To get past racism, we must here take account of race. There is no other present way. In the words of Alexander Heard of Vanderbilt, ‘To treat our black students equally, we have to treat them differently.’" In sum he is asking the Court to treat one class of citizens as a special class worthy of extra-Constitutional consideration. Such thinking on the part of the advocates of affirmative action is without merit and in conflict with the equal protection clauses of the Constitution; indeed, such an action by the Court could set a precedent for other less noble causes.

As ironic as it may be, the Fourteenth Amendment to the Constitution applies equally to all law-abiding citizens of the United States. It was passed to forestall the use of the Constitution as a special tool to serve the special interest of a selected class of citizens (in its creation, to protect the recently-freed slaves). Although he did not intend to do so, Bundy offers the best reason for the Supreme Court to find against the University of Michigan and for the offended students. He

“…found myself rereading two of the most famous of all judicial comments on the Constitution--what it is and what it permits. They both came from the pen of John Marshall in 1819.

‘In considering this question, then, we must never forget that it is a constitution we are expounding.’

And later in the same opinion:

‘Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, but consist with the letter and spirit of the constitution, are constitutional.’

If the Constitution is read in this grand manner, can it truly be unconstitutional to make room for qualified members of racial minorities on the staircase to the professions?”

As impassioned as he is, Bundy does not see that affirmative action is not legitimate, not “within the scope of the constitution,” and neither does it “consist with the letter and spirit of the constitution.” The stairway to the professions should have room for all qualified members.

by William Driver, Guest Columnist
January 22, 2003