Does the Equal Protection Clause apply to all ethnic minorities in America? The Miller Center doesn’t seem to think so. On September 15, the Miller Center held a discussion covering the history of affirmative action and the Supreme Court’s landmark decision overturning it.
The speakers included: Miller Center senior fellows Kevin K. Gaines and Kimberly Jenkins Robinson, and former secretary of the US Department of Education Eugene Hickok. The center’s Barbara A. Perry was the moderator.
Throughout the discussion, the speakers frequently conflated the ideas of equality of opportunity and equality of outcome while disregarding all nuance related to racial disparities in the United States. Most egregiously, the speakers failed to discuss the protests of Asian Americans, an extremely diverse minority at the forefront of the Supreme Court lawsuit. Much of the 60-minute discussion revolved around the benefits of increasing minority representation, yet, conveniently, affirmative action’s implications for Asians were completely ignored.
The discussion began with Perry describing the emergence of the term “affirmative action” in the Kennedy administration with regards to racial disparities in employment. Then, the panel established their premise by presenting a clip of former President Johnson stating, “We seek . . . not just equality as a right and a theory, but equality as a fact and equality as a result.” The unrealistic notion of equality of outcome was introduced. Gaines proceeded to claim that conservatives during the Reagan-Bush years were reframing the issue of race away from Johnson’s ideas of “rights” and “group-based equity” to the idea that affirmative action was equivalent to reverse racism. Gaines generalized the opposing perspective’s idea of race to “[not wanting] to look at historic discrimination and disparities and basically declaring our society as equal, so there is no need for any kind of anti-discrimination reform and policy.” What Gaines overlooked is that historic discrimination does not necessarily explain current disparities. Disparities are evident in virtually every part of the world and are even prominent within ethnic groups of a race, making them unlikely to be attributed to racism. An example would be the wealth gap between white Jews and white non-Jews. Additionally, several historically oppressed minority groups consistently outperform the majority, like the Armenians in Turkey and the Chinese in Malaysia. In fact, Malaysia instituted affirmative action for the majority population, as the children of Chinese laborers were outperforming the Malays. Essentially, disparities indicating discrimination presuppose an equality of performance between groups, which is simply impossible.
The conversation shifted back to Perry, who explained the landmark 1978 Regents of the University of California v. Bakke decision, in which Allan Bakke, a white man, had been rejected twice for admission to the UC Davis Medical School. The university had reserved 16 of their 100 seats for “qualified” minorities; however, Bakke’s college GPA and test scores were proven to exceed those of any of the minority students admitted. Bakke argued that the university violated the Fourteenth Amendment. The court decided that Bakke should be admitted to the university and that the rigid use of racial quotas violated the Equal Protection Clause; however, race could be used as one of many factors in admission. Perry then elaborated on two cases concerning the University of Michigan: Grutter v. Bollinger and Gratz v. Bollinger. The courts ended up deciding that diversity could be used as a “plus” for black, Hispanic, and Native American applicants, along with other plusses like experience, grades, and test scores, to “holistically conceptualize” each applicant. However, the university could not utilize a point system that provided underrepresented groups up to 20 bonus points, as this was not considered an individualized understanding of each candidate. To justify the precedent of “race-conscious holistic admissions,” Robinson explained how affirmative action follows the strict scrutiny standard of constitutional law; the use of race is narrowly tailored to achieve the compelling interest of the benefits of diversity in higher education. The problem is that the concept of “holistic admissions” is antithetical to affirmative action. The goal of holistic admissions is to consider the whole person rather than relying solely on a few factors. However, once race, an immutable characteristic, is considered, focus shifts to a group identity, which can overshadow the unique qualities and abilities of the individual. Qualified applicants, typically white and Asian, are held to different standards than other races, which can cause them to be overlooked. Viewing applicants through the lens of race assumes that all members of a particular racial group face the same disadvantages and advantages, which reinforces stereotypes and diminishes individuality. Furthermore, the speakers misrepresented the effects of affirmative action on students. Robinson broadly asserted that increased diversity in higher education prepares individuals to function in a diverse workforce and creates legitimate leaders. This discounts the reality of affirmative action placing students in educational environments where they are not adequately prepared to succeed in an attempt to attain equal outcomes. Before California terminated affirmative action, 73% of non-affirmative action accepted students graduated from UC San Diego, while 57% of affirmative action accepted students graduated. After California ended affirmative action, black graduation rates and GPAs increased. “Academic mismatch” contributes to low grades and high dropout rates for the minorities affirmative action advocates claim to support.
The exchange concluded with Hickok and Robinson’s overview and analysis of the Supreme Court’s overturning of affirmative action. Hickok claimed that those in favor of the ruling fail to see the “moral argument,” which is that considering race means considering the totality of an individual’s life and challenges. However, there is nothing moral about denying equal protection to white and Asian applicants. There is nothing moral about elite colleges penalizing Asian students on the SAT for performing too well. As soon as some racial groups are viewed as “overrepresented” in admissions, underprivileged white and Asian applicants are neglected. What does lowering the standards for other racial groups say about their intellectual capacity? Robinson described Justice Sotomayor’s dissent as “beautiful,” maintaining that the Constitution does not demand that we close our eyes to race. She insisted that to achieve equal opportunity, race must be considered, once again conflating opportunity and outcome. While the benefits of diversity outlined by colleges may seem commendable, they fail to meet the demands of strict scrutiny, as it is not possible for a court to know when “true diversity” has been reached. Moreover, the racial make-up of America is not stagnant; demographics are expected to change greatly in the next 10 years.
Unfortunately, it is not obvious to many that addressing past discrimination with more discrimination is utterly absurd and completely unconstitutional. While universities like UVA are actively finding loopholes around the Supreme Court decision through application essays, hopefully applicants will now be treated based on their experiences as individuals. To quote Chief Justice Roberts in his majority opinion, “Many universities have . . . concluded, wrongly, that the touchstone of an individual’s identity is not challenges bested, skills built, or lessons learned but the color of their skin. Our constitutional history does not tolerate that choice.”
The opinions expressed within this piece represent the views of the author alone and do not necessarily reflect the views of The Jefferson Independent.