Affirmative Action and the Perpetuation of Generational Racism in America

Heckler - On Affirmative Action

Affirmative Judicial Activism

In 1973 and 1974, Michael Bakke applied to the University of California, Davis Medical School. Bakke was twice denied enrollment, not due to poor qualifications, but due to his Caucasian ethnicity. ¹² The university had implemented a program designed to increase the number of minority students enrolled in its medical school. ¹³ Effectively, race or ethnicity was the only factor used to determine student admission to the medical school via the diversity program, thus creating an illegal quota system to drive minority admissions practices. ¹⁴

Bakke’s case reached the Supreme Court in October of 1977, and the decision was read in June of 1978. ¹⁵ Justice Lewis Powell (pictured above right) wrote the opinion of the Court in The University of California v. Bakke, which effectively gave institutions the right to use race or ethnicity, as long as they are taken into consideration with other applicant attributes, to approve or deny individuals entry into the institution. ¹⁶ Powell faults the University of California for using race alone in its admissions process. ¹⁷ Powell writes, “In summary, it is evident that the Davis special admissions program involves the use of an explicit racial classification never before countenanced by this Court. It tells applicants who are not Negro, Asian, or Chicano that they are totally excluded from a specific percentage of the seats in an entering class.” ¹⁸

Though Powell cites the University for implementing an unconstitutional quota system, he does not completely prohibit the use of an applicant’s race or ethnicity by admissions boards to grant or deny an individual admission to the institution. ¹⁹ In the opinion, Powell establishes a precedent of justifiable discrimination, “In enjoining petitioner from ever considering the race of any applicant, however, the courts below failed to recognize that the State has a substantial interest that legitimately may be served by a properly devised admissions program involving the competitive consideration of race and ethnic origin. For this reason, so much of the California court's judgment as enjoins petitioner from any consideration of the race of any applicant must be reversed.”²⁰ In other words, race or ethnicity cannot be the only personal attribute used by admissions boards to accept students into its programs, nor could institutions establish quotas for minority enrollment. Powell’s ruling paved the way for modern affirmative action policies.

What is affirmative action policy? According to Elizabeth Anderson, Professor of Woman’s Studies at the University of Michigan, “Affirmative action policies include any policies that (a) attempt to actively dismantle institutionalized or informal cultural norms and systems of ascriptive group-based disadvantage, and the inequalities historically resulting from them, and/or that (b) attempt to promote an ideal of inclusive community, as in ideals of democracy, integration, and pluralism (multiculturalism), (c) by means that classify people according to their ascriptive identities (race, gender, ethnicity, sexual orientation, etc.) and select people for participation in institutions using these classifications as criteria.” ²¹ Crystal clear, isn't it? To summarize, affirmative action policies give preferential treatment of individuals based on their race, ethnicity, religious affiliation, or gender.

Affirmative action policies attempt to redress disproportionate populations of minority individuals within organizations and institutions. ²² Today, discrimination in America is not the overtly racist bigotry that plagued the South through the 1960’s. In those days, blacks were forced to sit in areas of theatres and restaurants that were separate from the areas where whites were seated, and water fountains were labeled “whites only” or “blacks only.” Such conspicuous and frankly idiotic behavior is thankfully a thing of the past. Although we no longer contend with obvious race-based segregation, white only cafes, and signs that read “no coloreds allowed,” discrimination still exists, though in isolation and subtlety within our society. It is this silent, near imperceptible form of discrimination that affirmative action aims to attack. ²³

There is an image of a man standing behind a podium in Washington DC before thousands of adoring supporters. The image is certainly burned into the memory of every American, and the words of Martin Luther King Jr. will forever echo in our ears, “I have a dream that my four 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.” ²⁴ Sadly, the dream that King conceived during his short time on earth has been aborted, its life drawn from the womb of our collective consciousness by the very people who claim to protect it.

If a university selection process has narrowed down the candidate pool to two prospects, one white and one black, with both possessing desirable qualities, affirmative action would mandate selection of the minority candidate and rejection of the white candidate. Logical alternatives to affirmative action exist that would enable the university to choose candidates exclusively based on factors other than race or ethnicity. For example, a higher level assessment could be given to both candidates to identify exceptional talent or giftedness that previous screening may have failed to reveal. But, rather than administering further evaluation to expose academic exceptionalities, such as mathematical or scientific inclinations, affirmative action policy would, in essence, be the academic ‘tie breaker’.

If a colorblind society is truly our objective, then, as a nation, we will never achieve it as long as affirmative action remains entrenched in our organizations and institutions. Powell’s ruling, which allows organizations to select or deny opportunity to individuals based on race, either with or without consideration of other personal attributes, is a ruling that legalizes racial discrimination. Progressives put forth long and often convoluted arguments about the legitimacy of affirmative action, and similarly assert that affirmative action is not racial discrimination, or that race-based selection is somehow morally, socially, and legally justified. But if institutions are allowed to choose (discriminate) based on ethnicity (race), how can it be said that such policies are anything less than racial discrimination?

Powell’s error was in his interpretation of the Fourteenth Amendment, which provides the right to equal treatment under the equal protection clause of Section One. The clause explicitly states that the state cannot “deny to any person within its jurisdiction the equal protection of the laws.” ²⁵ (See Amendment XIV of the Constituion) Referring to the equal protection clause, Powell writes, “Such rights are not absolute.” ²⁶ He later continues, “Race or ethnic background may be deemed a "plus" in a particular applicant's file, yet it does not insulate the individual from comparison with all other candidates for the available seats.” ²⁷ Powell’s argument asserts that the Fourteenth Amendment protections are only partially protective, and race may be legally used in conjunction with other factors if the state has a compelling reason to allow such discriminatory policies. What Powell fails to realize is that admissions policies could be structured in such a way as to still allow or deny persons admission based on race. If race can be a “plus factor” ²⁸ when stack ranking candidate qualifications, then a minority student will obtain an advantage over a nonminority student by virtue of their race alone. Such a circumstance would violate the right to equal protection of the nonminority applicant, because their nonminority status comparatively disadvantaged them, even though both applicants shared the same academic qualifications. Powell did not eliminate reverse discrimination with his ruling; he simply cloaked it, hiding it from the purview of moral and legal dissent. Today, discrimination is rampant in our private and public organizations and institutions of higher learning, yet it is shrouded in convoluted arguments, complex and circular justifications, and illogical reason, which all render its diagnostication an onerous task. But peel the onion, and you will see it for what it truly is.

John Locke, prophetically recognizes the implications of sanctioned institutional discrimination in his Second Treatise on Government. “In transgressing the law of nature," Locke writes, "the offender declares himself to live by another rule than that of reason and common equity, which is that measure God has set to the actions of men, for their mutual security; and so he becomes dangerous to mankind, the tie, which is to secure them from injury and violence, being slighted and broken by him.” ²⁹ Perhaps it is men like Justice Powell that Locke describes, men who have proven themselves “dangerous to mankind” by upholding discriminatory practices in our society.

Affirmative action is not only unconstitutional, it is immoral. Further, it does tremendous harm to race reparations in America, the advancement of equal access, and the realization of Dr. King’s colorblind society. As each new generation enters society, our nation has the opportunity to take a step forward toward true equality. Children are not born to discriminate; they learn to discriminate from each preceding generation. In the absence of legal discrimination, as generational distance from the transgressions of racist America in the 1960’s grows, the propensity to inflict racism, and other incarnations of bigotry, would incrementally fade, and society would evolve into the one described in Dr. King’s dream. But for now, the dream is elusive. Social policies such as affirmative action whisper bigotry into the collective ear of each successive generation. They tell a lie to each new class of Americans graduating into society, that they are innately and secretly intolerant and prejudiced, and then we all scratch our heads and wonder why prejudices persist. Our children, and our children’s children, will merely live up to the expectation we have set for them in the foundational premise of affirmative action policies, which is the expectation that each person is intrinsically and secretly racist, bigoted and chauvinistic. Indeed, we will never truly live in a colorblind society as long as social policies exist to keep our eyes focused on color. Until we can summon the courage to strike down legal discriminatory practices, affirmative action will continue to counterproductively perpetuate discrimination in our society, and the dream of a nation wherein, “little black boys and black girls will be able to join hands with little white boys and white girls and walk together as sisters and brothers” ³⁰ will sadly remain dead.

Sources

12. Supreme Court of the United States (Powell), Opinion of the Court, California Board of Rgents v. Allen Bakke, at: http://supct.law.cornell.edu/supct/html/historics/USSC_CR_0438_0265_ZO.html

13. Ibid.

14. Ibid.

15. Ibid.

16. Ibid.

17. Ibid.

18. Ibid.

19. Ibid.

20. Ibid.

21. Anderson, Elizabeth S. (John Rawls Collegiate Professor of Philosophy and Women's Studies), Under Section: Arguments for Affirmative Action Policies, at: http://www-personal.umich.edu/~eandersn/biblio.htm#Pro

22. Ibid.

23. Science Daily, Discrimination Is More Taxing On The Brain, ScienceDaily, at: http://www.sciencedaily.com­ /releases/2007/09/070919093316.htm

24. King, Martin Luther, I have a Dream Speech, August 1963, at: http://www.mlkonline.net/dream.html

25. The Constitution of the United States and the Bill of Rights, from the Kirkpatrick Signature Series Reader, Bellvue Press, (p. 127)

26. Supreme Court of the United States (Powell), Opinion of the Court, California Board of Rgents v. Allen Bakke, at: http://supct.law.cornell.edu/supct/html/historics/USSC_CR_0438_0265_ZO.html

27. Ibid.

28. Ibid.

29. Locke, John, The Second Treatise on Government – Chapter II, from the Kirkpatrick Signature Series Reader, Bellvue Press, (p. 112)

30. King, Martin Luther, I have a Dream Speech, August 1963, at: http://www.mlkonline.net/dream.html

31. Rauchut, Edward A., American Vision and Values, Bellvue Press, 2008, (p. 65)

32. Meese, Kirkpatrick Reader, Bellvue Press, 2008, (p. 180)

33. Madison, Kirkpatrick Reader, Bellvue Press, 2008, (p. 131)

34. Spaulding, Kirkpatrick Reader, Bellvue Press, 2008, (p. 148)

35. Ibid. (p. 148)

36. Rauchut, Edward A., American Vision and Values, Bellvue Press, 2008, (p. 70)

37. Moore, Kirkpatrick Reader, Bellvue Press, 2008, (p. 176)

38. Ibid. (p. 176 – 177)

39. Ibid. (p. 177)

40. Ibid. (p. 178)

41. Rauchut, Edward A., American Vision and Values, Bellvue Press, 2008, (p. 73)