Saturday, March 13, 2010

An Old Speech of Mine on Affirmative Action

For those of you interested in what I really think about affirmative action, here is the text of a speech I gave at Yeshiva University back in 2003 as part of a contest. I ended up coming in fourth place, just missing out on winning prize money. This speech was given while the Supreme Court was hearing the Michigan cases of Gratz v. Bollinger and Grutter v. Bollinger on affirmative action. The argument I offer follows a similar line of reasoning to what I offered in regards to Aryan coffee. We cannot even begin to talk about a government interest in diversity unless we also admit a government interest in conformity in which case we are trapped into accepting segregation as at least having a plausible legitimacy.

A key corollary to the fourteenth amendment is title VI of the 1964 Civil Rights Act. According to Title VI: No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." As Senator Ribicoff explained it: "Basically, there is a constitutional restriction against discrimination in the use of federal funds; and title VI simply spells out the procedure to be used in enforcing that restriction." This sentiment was endorsed by Justice Powell in the Bakke the decision. Bakke has recently come back into the public eye. This past month the Supreme Court has heard two cases involving the issue of Racial preferences in regards to University admissions: one involving the University of Michigan's undergraduate admissions policy (Gratz v. Bollinger, 02-51), and one involving the University of Michigan's law school admissions policy (Grutter v. Bollinger 02-241). These are two very different cases. In Gratz, the undergraduate case, there is a point system, in which prospective students are given points based on such categories as where they live and how they scored on various tests. In one of these categories, twenty points are awarded to prospective students who are either athletes, come from impoverished backgrounds or are a part of specific minority groups. In Grutter, the law school admissions case, the University simply has a stated policy that it should tailor its admissions program in order to achieve a critical mass of minority students within its classes.

The argument in regards to these cases is not about whether Michigan is in violation of, at the very least the letter, of title VI. The ACLU, which has written an amicus curiae brief in support of the university, claims though, that Michigan's admissions policy is a compelling state interest since it enables the University to have a diverse student body. I ask on this; if the state, or the institutions that it funds, has the right, even the duty, to ignore title VI out of a compelling interest in diversity, as Michigan, the ACLU along with over sixty other organizations are claiming, then cannot the state also choose to ignore title VI out of other compelling interests? Diversity certainly is not the state's only compelling interest.

America, if you think about, is in a sense, for better or for worse, the great experiment in conformity. Crucial to American Civics is the notion that we are going throw Italians, Jews, Poles, Germans etc. together onto our golden streets and everybody is going to somehow turn into Americans. We generally call this phenomenon "the Melting Pot." If one can claim diversity to be a compelling state interest then certainly one can also claim that the venerable melting pot of conformity is also a compelling state interest.

Once states can get around Title VI by claiming a compelling interest in conformity then Title VI becomes absolutely meaningless. What would happen IF the University of South Carolina would decide that in keeping with its compelling interest in having a student body that conforms, the University will from now on tailor its admissions policy in a manner designed to avoid achieving a critical mass of minorities on its campus? What if South Carolina were to decide to give white applicants, along with athletes and students from impoverished backgrounds, an extra twenty points on their admissions scores? On what grounds could the University be legally stopped? Not Title VI, for the University can claim to have a compelling interest in ignoring title VI.

What the compelling state interest argument ignores is the fact that the body of Civil Rights legislation came about in order to get around the claim that the institutions of slavery and segregation were compelling state interests. The fourteenth amendment and title VI only make sense if we accept the words of Justice John Marshall Harlan, the lone dissenter in the Plessy vs. Ferguson. "Our constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved." The colorblind constitution is the only for the just and free society to triumph over the claims of compelling state interest.


Jeremy said...

What was the ruling in the Supreme Court?

I assume it allowed such discrimination to continue, because it certainly happens in college admission today.

I wish USC, or any other university, would announce the sort of policy you had suggested hypothetically in order to make the point.

Izgad said...

It ended up being a classical Justice Sandra Day O’Conner vote. She was a moderate conservative justice who liked to work out technical legal compromises that avoided having the court come down on one side or the other in terms of the major societal debates. She provided the swing vote for Grutter, which allowed general affirmative action to stand, but then turned to vote on Gratz against allowing a point system for minorities. This maintained the Bakke compromise. Universities cannot give anything specific to minorities like points on an admission score or insist that at least a certain percentage of their students be minorities. What they are still allowed to do is view the fact that a student is a minority as a vague general “plus.” In essence affirmative action is okay as long as it is a “wink wink nudge nudge” off the books sort of thing and not a specific policy.