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Affirmative action
Unequal protection
In the first of three pieces on race-based preferences around the world, we look at America’s pending Supreme Court decisions on diversity at universities
Apr 27th 2013 | AUSTIN, TEXAS |From the print edition
WILLIAM POWERS is the president of the University of Texas at Austin (UT-Austin). Lino Graglia holds an endowed chair at its law school. Both have kindly demeanours, impressive records and that crucial perk of academic success, offices with great views: Mr Powers looks out over the heart of the university’s campus, Mr Graglia at its football stadium.
They also hold strong and opposing opinions on whether admissions to their state-run university ought to take account of race. Mr Powers believes that using “race as one factor in an overall holistic view of the candidate” helps the university build a diverse campus, an achievement which has “an educational value for all of our students”. Mr Graglia thinks “lower[ing] standards to admit members of preferred groups” is “a bad idea”.
America has a number of policies and practices designed to increase the presence of minorities in various areas of life from which they have historically been excluded. But the role of such affirmative action in university admissions has garnered the most attention. Schools and universities provided many of America’s desegregation battlegrounds. And gaining entry to America’s elite universities is difficult; the perception, right or wrong, that race can in some circumstances trump merit strikes many as unjust, not least because universities play a large role in social mobility.
The Supreme Court is about to weigh in on the matter. In March it agreed to hear a case that could determine whether a state may ban affirmative action in university admissions on the basis of a referendum. In 2006 a majority of Michigan’s voters approved such a measure, but last November a federal appellate court ruled that the measure violates the equal-protection clause of the constitution, which requires states to treat all citizens equally, by preventing affirmative-action supporters from pressing their case to individual universities. And the court will soon rule on a suit brought against UT-Austin by Abigail Fisher, a white woman who was not admitted to the university.
Non-discrimination discrimination
Ms Fisher contends that by rejecting her at the same time as it accepted minority candidates with less impressive academic records UT-Austin violated the equal-protection clause. The university contends that the state’s “compelling interest” in having a diverse student body justifies taking race, among many other factors, into account when judging applications.
In a 2003 ruling, Grutter v Bollinger, the Supreme Court recognised that such an interest existed. But in her majority opinion Sandra Day O’Connor said that the court expected the use of racial preferences to further that interest would, within 25 years, no longer be necessary. Since John Roberts became chief justice in 2005 the court has grown increasingly sceptical of race-conscious laws. In a 2007 opinion Justice Roberts wrote: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”
If Ms Fisher wins, universities may find their ability to practise affirmative action curtailed or gone. A decision in favour of the state of Michigan in the other case would have a similar effect. Voters have banned affirmative action at universities in at least eight states, and they could do so in more.
Richard Sander, the author, with Stuart Taylor, of a book-length study of affirmative action’s effects entitled “Mismatch”, estimates that an end to the policy will affect between 20% and 25% of American universities which between them account for around 30% of America’s roughly 20m university students. That ending would not be out of step with the national mood, as those state-level bans imply. Many see a world that has outgrown affirmative action. Legally codified racism is a distant memory. In the nation’s two biggest states whites are no longer a majority; this will be true in the nation as a whole within a few decades. Before the 1960s, when the foundations of affirmative action were first laid down, most blacks were poor, few served in public office and almost none were to be found flourishing at the nation’s top universities, corporations, law firms and banks. None of that is true today.
The Civil Rights Act that Lyndon Johnson signed in 1964 proscribed discrimination on grounds of race. It also explicitly stated that none of its provisions required employers “to grant preferential treatment to any individual or to any group”. But American law and policy soon began moving in a different direction. In 1968 the Department of Labour required contractors to have “goals and timetables” for increasing minority representation. In 1971 the Supreme Court ruled that the act forbade “not only overt discrimination but also practices that are fair in form, but discriminatory in operation.”
A slew of affirmative-action programmes aimed at correcting that discrimination-in-operation followed. They were intended to boost minority employment and remedy systemic discrimination in hiring and admissions: both worthy endeavours. But because race-based affirmative action is a blunt and gameable instrument, it often helps successful or well-connected applicants rather than truly needy ones.
Originally posted by Part 1
Affirmative action
Unequal protection
In the first of three pieces on race-based preferences around the world, we look at America’s pending Supreme Court decisions on diversity at universities
Apr 27th 2013 | AUSTIN, TEXAS |From the print edition
WILLIAM POWERS is the president of the University of Texas at Austin (UT-Austin). Lino Graglia holds an endowed chair at its law school. Both have kindly demeanours, impressive records and that crucial perk of academic success, offices with great views: Mr Powers looks out over the heart of the university’s campus, Mr Graglia at its football stadium.
They also hold strong and opposing opinions on whether admissions to their state-run university ought to take account of race. Mr Powers believes that using “race as one factor in an overall holistic view of the candidate” helps the university build a diverse campus, an achievement which has “an educational value for all of our students”. Mr Graglia thinks “lower[ing] standards to admit members of preferred groups” is “a bad idea”.
America has a number of policies and practices designed to increase the presence of minorities in various areas of life from which they have historically been excluded. But the role of such affirmative action in university admissions has garnered the most attention. Schools and universities provided many of America’s desegregation battlegrounds. And gaining entry to America’s elite universities is difficult; the perception, right or wrong, that race can in some circumstances trump merit strikes many as unjust, not least because universities play a large role in social mobility.
The Supreme Court is about to weigh in on the matter. In March it agreed to hear a case that could determine whether a state may ban affirmative action in university admissions on the basis of a referendum. In 2006 a majority of Michigan’s voters approved such a measure, but last November a federal appellate court ruled that the measure violates the equal-protection clause of the constitution, which requires states to treat all citizens equally, by preventing affirmative-action supporters from pressing their case to individual universities. And the court will soon rule on a suit brought against UT-Austin by Abigail Fisher, a white woman who was not admitted to the university.
Non-discrimination discrimination
Ms Fisher contends that by rejecting her at the same time as it accepted minority candidates with less impressive academic records UT-Austin violated the equal-protection clause. The university contends that the state’s “compelling interest” in having a diverse student body justifies taking race, among many other factors, into account when judging applications.
In a 2003 ruling, Grutter v Bollinger, the Supreme Court recognised that such an interest existed. But in her majority opinion Sandra Day O’Connor said that the court expected the use of racial preferences to further that interest would, within 25 years, no longer be necessary. Since John Roberts became chief justice in 2005 the court has grown increasingly sceptical of race-conscious laws. In a 2007 opinion Justice Roberts wrote: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”
If Ms Fisher wins, universities may find their ability to practise affirmative action curtailed or gone. A decision in favour of the state of Michigan in the other case would have a similar effect. Voters have banned affirmative action at universities in at least eight states, and they could do so in more.
Richard Sander, the author, with Stuart Taylor, of a book-length study of affirmative action’s effects entitled “Mismatch”, estimates that an end to the policy will affect between 20% and 25% of American universities which between them account for around 30% of America’s roughly 20m university students. That ending would not be out of step with the national mood, as those state-level bans imply. Many see a world that has outgrown affirmative action. Legally codified racism is a distant memory. In the nation’s two biggest states whites are no longer a majority; this will be true in the nation as a whole within a few decades. Before the 1960s, when the foundations of affirmative action were first laid down, most blacks were poor, few served in public office and almost none were to be found flourishing at the nation’s top universities, corporations, law firms and banks. None of that is true today.
The Civil Rights Act that Lyndon Johnson signed in 1964 proscribed discrimination on grounds of race. It also explicitly stated that none of its provisions required employers “to grant preferential treatment to any individual or to any group”. But American law and policy soon began moving in a different direction. In 1968 the Department of Labour required contractors to have “goals and timetables” for increasing minority representation. In 1971 the Supreme Court ruled that the act forbade “not only overt discrimination but also practices that are fair in form, but discriminatory in operation.”
A slew of affirmative-action programmes aimed at correcting that discrimination-in-operation followed. They were intended to boost minority employment and remedy systemic discrimination in hiring and admissions: both worthy endeavours. But because race-based affirmative action is a blunt and gameable instrument, it often helps successful or well-connected applicants rather than truly needy ones.
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