The Real Affirmative-Action Problem


By Stan Crock Any day now, the U.S. Supreme Court will hand down a ruling that could overhaul affirmative-action programs in schools and workplaces across the nation. At the heart of the case, which involves the University of Michigan's admissions policies, is whether preferential treatment for minorities violates the Constitution's ban on racial discrimination.

Put another way, are whites as protected as minorities by the constitutional limitations on race bias? The plaintiffs in the case say yes. But the problem with this case -- and other similar cases -- is that it confuses a genuine policy debate with a constitutional issue. The constitutional question, from a historical standpoint, is easily answered. And the answer is no.

Let's look at history. The 14th Amendment, adopted in 1868, was intended to make sure that newly freed slaves were not denied the equal protection of the law. It was supposed to provide "constitutional protection to the unfortunate race who had suffered so much," in the words of the high court in the famous Slaughter-House Cases. The beneficiaries were clear, and they didn't have white skin.

DIFFERENT SCRUTINY. Fast forward to the New Deal. The Supreme Court, a conservative lineup of jurists at the time, knocked down New Deal economic legislation with so much regularity that President Roosevelt threatened to pack the bench with more liberal souls. The justices backed off, but the question of when it's appropriate for judges to toss out laws remained a serious issue. After all, judicial review would be meaningless if a court cannot overturn legislative acts.

In 1938, in a case involving a federal curb on the interstate shipment of skim milk mixed with nonmilk fats, Justice Harlan Fiske Stone wrote a footnote that would have a profound impact on the way the Bill of Rights would be interpreted in the future. He suggested that different kinds of laws may face different kinds of scrutiny in the courts.

In particular, Stone suggested that there should be "more exacting judicial scrutiny" for laws that involved "prejudice against discrete and insular minorities," because the laws may "curtail the operation of those political processes ordinarily to be relied on to protect minorities."

CONSERVATIVES OR ACTIVISTS? The point here is that minorities can't use the political system to protect themselves as easily as the white majority can. So minorities -- not whites -- should be the beneficiaries of both the 14th Amendment and the notion of "strict scrutiny" of racially tinged laws.

Now let's look at the current makeup of the Supreme Court: Clearly, a truly conservative court would heed the words of such important precedents, instead of being judicial activists who have pushed for re-interpretations of the Bill of Rights over the last few decades.

That's not to say that if whites are ruled not to have this kind of constitutional protection, the debate is over. There's a serious policy issue about affirmative action that needs to be addressed, and that has to do with its implementation.

AFFIRMATIVE ALTERNATIVES. Should the children of black doctors and lawyers get affirmative-action help, or should the beneficiaries be those who otherwise would not get into a college or get a job? Does affirmative action create a second class of students and workers, who are looked down on by colleagues and have their own doubts about why they are where they are? Is there a better way of achieving goals than giving extra points to minorities in ranking systems or reserving job slots for minorities?

I'd say yes, probably, on all counts. One alternative to affirmative action is to expand what some state universities, like the University of Texas, already do: automatically admit the top 5% or 10% of any in-state high school. That would reward kids who are hardworking and maximize what their school systems can offer. Thanks to continuing residential segregation, this system would benefit minorities as well as poor whites. No one would be regarded as second-class, because all were stellar performers.

For private schools, the situation is more complicated. They can't admit as many kids as state schools, so they can't have the same policy. It's also complicated because the admissions standards they use are so flexible. In light of the admissions of alumni children and talented pianists and athletes with so-so grades, these schools are hardly strict academic meritocracies. They want a well-rounded student body -- an admirable goal. Perhaps they should be allowed to preserve flexibility in admissions, since this is a policy matter, not a constitutional one.

ONGOING CHALLENGE. On the job front, companies should return to the original notion of affirmative action, which was an outreach program. I know from personal experience in recruiting that if you look in places the white network doesn't normally reach, you find talent you would not normally see.

When I was an editor, I always hired the person most likely to succeed. That meant males and females of a variety of colors. And the vast majority do succeed if the same criteria are used consistently. I have seen where that was not done, and both whites and minorities failed.

If the High Court does throw out the white challenges to affirmative action, we should not stand pat on the existing state of affairs. We should resume a legitimate policy debate, without making it a constitutional issue. A more modulated policy could resolve disputes over affirmative action more calmly and coherently. Crock, who is a correspondent in BusinessWeek's Washington bureau, also holds a law degree.


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