Is Affirmative Action Doomed?

Sandra Day O'Connor
Sandra Day O'Connor; drawing by David Levine


Is affirmative action unconstitutional? Does it violate the Fourteenth Amendment’s guarantee of “equal protection of the laws” for universities to give preference to blacks and other minorities in the fierce competition for student places, as the best of our universities have done for thirty years? In 1978, the late Justice Lewis Powell, in his opinion in the Supreme Court’s famous Bakke decision, ruled that racial preferences are permissible if their purpose is to improve racial diversity among students, and if they do not stipulate fixed minority quotas, but take race into account as one factor among many. Since four other justices in that case would have upheld even a quota system, five of the nine agreed that plans meeting Powell’s tests were constitutional.

Many lawyers fear that the Supreme Court will soon reconsider its Bakke ruling, however, and declare that any racial preference in an admissions process is, after all, unconstitutional. In 1996, the Fifth Circuit Court of Appeals, in the Hopwood case, struck down the Texas Law School’s affirmative action plan, and two of the three judges in the panel declared that recent Supreme Court decisions about affirmative action policies in areas other than education have already in effect overruled Bakke, so that all university affirmative action is now unconstitutional.1

The Fifth Circuit’s decision had immediate and, in the view of the Texas Law School’s faculty, disastrous results: that school had admitted thirty-one black students in 1996, but it enrolled only four in 1997. The Supreme Court refused to review the decision, but the Center for Individual Rights, a Washington, D.C.-based organization that had facilitated the Hopwood litigation, has already filed a new lawsuit in Michigan challenging the University of Michigan’s affirmative action plan, and other suits can be expected in other jurisdictions. The Supreme Court will have to rule on the matter soon.

It will be not only ironic but sad if the Court reverses its own longstanding ruling now, because dramatic evidence of the value of affirmative action in elite higher education has just become available. Critics of the policy have long argued, among other things, that it does more harm than good, because it exacerbates rather than reduces racial hostility, and because it damages the minority students who are selected for elite schools where they must compete with other students whose test scores and other academic qualifications are much higher than their own. But a new study-The Shape of the River by William G. Bowen and Derek Bok-draws on a huge database of information about student records and histories, and on sophisticated statistical techniques, not only to refute those claims but to demonstrate the contrary.2 According to the River study, affirmative action has achieved remarkable success: it has produced higher rates of graduation among black college students, more black leaders in industry, the professions, and community and neighborhood service, and more sustained interaction and…

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