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Affirmative Action vs. Race Preferences

Monday, June 23, 2003, was an unusually sad day for me. On that day the Supreme Court disregarded the 14th Amendment to the U.S. Constitution and upheld the University of Michigan Law School’s skin color preference admissions policy. 

By a vote of 5-4, the Court ruled that black applicants may be given an advantage over other students because of the color of their skin, to the shame of all who died fighting for equal justice under the law during the Civil Rights Movement.

Race preferences are institutionalized throughout the government, private industry and universities. They permeate our society. Why? To compensate for past discrimination? For the sake of diversity?

Here’s a clue. Before the Civil Rights Act of 1964, companies like Duke Power blatantly discriminated against blacks by relegating them to lower-paying and less desirable jobs. After the law became effective, Duke Power instituted aptitude tests and high school diploma requirements for applicants seeking employment or employees seeking to transfer to previously “white” positions.

A disproportionately high number of black applicants and employees were failing the tests and/or didn’t have high school diplomas, so they filed suit against Duke Power on the grounds that these requirements violated the Civil Rights Act. The Supreme Court agreed. In 1971 in Griggs v. Duke Power Co., it held that for purposes of hiring, Duke’s employment requirements operated to maintain past discrimination.

Even if there is no discriminatory intent, a practice is suspect if it has a disparate impact on members of a protected class. Subsequently, more companies began developing race-conscious plans. Out of fear of lawsuits, companies set aside a certain number of jobs for “protected class” members. Race preferences were born.

Preferential Affirmative Action reared its ugly head in education. In 1978, University of California v. Bakke was the first major constitutional test of Affirmative Action. UC-Davis’s medical school had two separate admissions tracks. Sixteen slots were set aside for blacks, who were judged by less rigorous standards. Rejected white student Allan Bakke filed suit, alleging violation of the Act.

The school argued that discrimination against white students was necessary to remedy past discrimination against blacks. They also contended that skin color diversity would enrich the learning of medical students because black students would contribute to the “robust exchange of ideas.” (Imagine a “robust exchange” in human anatomy or molecular biology).

The Court rejected the school’s brazen use of racial quotas – the 16 slots – and ordered Bakke admitted. For the sake of diversity, however, the Court found that admitting lesser qualified minorities constitutes a “compelling state interest.” Diversity now rules the day. By the way, whenever you hear liberals championing diversity, they’re definitely not referring to diversity of ideas; only skin color and sexual preferences.

We need to do away with race preferences now and find alternative ways of ensuring equal opportunity, not outcome, for all. We need to adopt race-neutral alternatives to Affirmative Action, including broader socio-economic and regional selection, school choice for K-12 and aligning K-12 curriculum requirements with college admissions requirements, for example. Perhaps these alternatives would encourage equal treatment. Or maybe the people themselves, and not unelected Supreme Court justices, will dismantle race preferences.

Ward Connerly, a University of California Regent and vilified black conservative, spearheaded Proposition 209, the 1996 voter-approved measure that ended sex and race-based preferences in state hiring and college admissions in liberal California and a similar measure in Washington State. Connerly is committed to organizing similar ballot initiatives across the country.

There is no justification for skin color preferences in the United States, a country teeming with opportunity and all sorts of taxpayer-supported and private programs designed to educate, train and equip. Race is a divisive issue. The sooner we get past categorizing citizens by skin color, the sooner we can improve race relations.

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