The controversy over affirmative action continues to spawn litigation and torment American politics.
In recent weeks, the 6th U.S. Circuit Court of Appeals in Cincinnati was asked to overturn a Michigan law that bans the consideration of race in college admissions and government hiring.
The U.S. Supreme Court will look at ending such programs based on a suit filed by Abigail Noel Fisher, a white University of Texas applicant who claims she suffered discrimination when she applied to the university’s campus at Austin.
Universities have generally had a free run to incorporate affirmative action since the 1978 Regents of the University of California v. Bakke decision gave race-preference admissions the green light. In the ensuing years, the courts have issued contradictory opinions, both inching toward approval and backing away from the controversial practice. A 2003 U.S. Supreme Court ruling, Grutter v. Bollinger, said University of Michigan Law School admissions officers can consider race. At the same time, the justices struck down a separate U of M admissions program that took race into account.
President John Kennedy’s 1961 Executive Order No. 10925, which first ordered affirmative action, was narrow in scope. It required government contractors to “take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color, or national origin.” His nondiscriminatory edict, however, has been systematically violated by court interpretations and administrative policies. Affirmative action morphed into a far different and sharper meaning; that of preferential treatment.
Advocates see the continuation of affirmative action as a litmus test of our commitment to racial justice; to rectify the wrongs of the past by giving blacks and protected minorities an advantage in selection processes. Institutions of higher learning have used it to advance the concept of diversity and integration of a broad array of viewpoints.
Blacks and other minority group members, for example, are often given extra points and special consideration to enhance their access to coveted admissions. This has greatly contributed to heightened tensions that stigmatize and reinforce the myth of racial and gender inferiority. Even the recipients are never sure they would have obtained the position without special treatment.
Equal results for these groups can mean moving to the front of the line and discriminating against other people, some with higher qualifications. Increasingly, though, affirmative action is seen as an unacceptable violation of the ideal of equality of opportunity and the principle that government — in particular — should be color-blind when considering an applicant’s qualifications.
For rejected white applicants, there can only be frustration from having played by the rules and meeting all of the requirements for entry into the school of their choice or being accepted for the jobs they desire. These applicants must experience the same “slap in the face” and rejection that blacks in past years experienced: being subjected to a criterion other than their merits. The irony in today’s affirmative action strife is that skin color is often used as a source of entitlement, just as whites once used it as a source of privilege.
Arizona, California, Nebraska and Washington have eliminated race-based affirmative action in college admissions through ballot initiatives. The New Hampshire legislature passed a law banning racial preferences. All preferences based on race and sex must end. Diversity in higher education is not a “compelling government interest.”
Previous court decisions have left in place a revisionist form of “separate and unequal” when “equal protection under the law” should be our universal creed in policy and practice.
The courts have another opportunity to right the wrongs. It should prohibit all discriminatory hiring — and preferential treatment — in college admissions and government institutions.