Race may finally be declared constitutionally off-limits when it comes to college admissions, nearly a quarter century after the U.S. Supreme Court struck down an affirmative action program that admitted students to the University of California-Davis medical school based upon the color of their skin.
In two cases, Grutter v. Bollinger, No. 02-241, and Gratz v. Bollinger, No. 02-516, the High Court will decide whether the Constitution's equal protection guarantee and federal civil rights laws prohibit ethnicity from factoring into the decision to admit or reject a student. A clear ruling is necessary because some courts believe the Court left the door open for universities to consider race as a "plus" factor in its 1978 Regents of the University of California v. Bakke decision that ruled racial quotas in the admissions process were unconstitutional.
The Court needs to shut that door now.
For a generation since Bakke, leading public and private colleges and universities have continued to consider race and ethnicity prominently in deciding whether to admit or reject students. And since the Supreme Court found that the Constitution unequivocally prohibited reserving seats based on skin color, college admissions committees simply started to put their collective thumbs on the admissions scale for minorities.
For instance, the two cases taken up by the Supreme Court demonstrate that black, Hispanic, and Native American applicants to the University of Michigan get tremendous preferential treatment over their white and Asian counterparts.
For undergraduate admissions, Michigan employs a "Selection Index" that uses a scale up to 150 points to score and compare applicants. The Index assigns point values to a variety of factors, such as grade point average, standardized test scores, quality of school, strength of curriculum, in-state residency, alumni relationships, an essay, personal achievement, and, of course, race. Under the system, minority applicants automatically get 20 points added to their score if they are black, Hispanic, or Native American. This 20 point bump means that a B-average minority student (60 pts for 3.0 GPA + 20 pts minority factor) scores the same admissions index as an A-average white or Asian student (80 pts for 4.0 GPA + 0 pts minority factor), holding other factors equal.
Moreover, this 20-point windfall simply for being born to certain parents dwarfs other admissions factors that certainly should be all the more important to institutions of higher learning. For instance, just 12 points can be earned for a perfect score on standardized tests such as the SAT and ACT. Only 8 points can be earned for choosing a strong high school curriculum, and a miniscule 1 point can be earned for an outstanding admissions essay all for a total of a possible 19 points. In other words, by birth, minority students earn 1 point more than they could even hope to achieve through high school coursework, a college entrance exam, and an admissions essay combined, and they could still earn those 19 merit-based points as well. All the while, white and Asian applicants have no chance at those 20 bonus points reserved for blacks, Hispanics, and Native Americans.
The situation is much the same at the University of Michigan's law school, which is consistently regarded as one of the top 10 legal training grounds in the country. Like the undergraduate admission process, the law school relies upon a selection index and explicitly considers race as a factor in admitting a student. In fact, the law school's admissions policy notes the importance of enrolling a "critical mass" of minority students, and states that the law school should continue to admit applicants "despite index scores that place them relatively far from" the upper end of the admissions index in order "to help achieve diversity" including "racial and ethnic diversity."
The notion that race should matter in college admissions starkly conflicts with the very essence and spirit of the Fourteenth Amendment namely, that all people, regardless of their skin color and heritage, should be guaranteed "the equal protection of the laws." The Court has consistently implemented this constitutional command by requiring that decisions be colorblind where state and federal funds are at play, and college admissions should be no different.
But the current presence of affirmative action in university admissions dispels any notion that attending a college of choice is a colorblind process.
The blatant result of these and other affirmative action programs is overt discrimination based on race in the case of college admissions, usually against whites and Asians. It is the same type of discrimination that was intended to be remedied by the Fourteenth Amendment and federal civil rights laws, and it is precisely what the Constitution's Equal Protection Clause guarantees will not occur. After all, these "plus" factors based on race and ethnicity inevitably end up adversely impacting the admissions decisions of other "non-plused" non-minority applicants in what is a zero-sum game.
Thus, a generation's worth of experience has taught us what should have been apparent when the Court struck down what was an explicit racial quota in the Bakke case it matters little whether you set aside specific seats for or give a bump up to favored races, the result is the same: others suffer and are excluded from the same opportunities based upon the color of their skin.
That was discrimination in 1954 and 1964, it still is today, and it certainly cannot be "equal protection of the laws."December 6, 2002
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