Naked Racial Preference: The Case Against Affirmative Action

by Carl Cohen

Overview

From landmark court cases on affirmative action to their consequences, a study on why such preferences are morally wrong, unlawful, and indefensible.

Product Details

ISBN-13:	9781461704218
Publisher:	Rowman & Littlefield Publishers, Inc.
Publication date:	09/12/1995
Sold by:	Barnes & Noble
Format:	eBook
Pages:	240
File size:	855 KB

Read an Excerpt

CHAPTER ONE

Racial Preference in Law School Admissions

DeFunis v. Odegaard

The first great battle over preferential affirmative action ended in a draw. The law school at the University of Washington had set aside 16 percent of the places in its entering classes exclusively for members of racial or ethnic minorities: Philippines-Americans, Chicano-Americans, black Americans, and American Indians. All applicants were screened and categorized by race. Minority applicants were then admitted to the law school using standards much lower than the admission standards applied to whites.

While this affirmative action program was in force, a white applicant with a fine record, Marco Defunis, was rejected by the law school in two successive years. Convinced that he (or some other white applicants in very similar circumstances) would surely have been admitted had his skin been of a different color, he sued the university for admission, claiming that he had been deprived of his constitutional right to the equal protection of the laws.

DeFunis won in the lower court; the university was ordered to admit him, and did so. But they appealed, and he lost in the highest Washington court; this order was stayed, however, while DeFunis appealed his case to the Supreme Court of the United States. When argument was finally heard before that court the university agreed that DeFunis, by this time nearing the end of his third year in law school, would be permitted to graduate whatever the legal outcome. Finding no remaining issue between the parties, the SupremeCourt held the case moot(*)

Justice William Douglas, the leading liberal justice on the Court at that time, wrote a strong dissent. He argued at length that the issues were not moot, and that the Court ought to have addressed straightforwardly the constitutional questions presented by deliberate racial preference. As a committed civil libertarian, Douglas was plainly angered by the race-based inequality of treatment given by the university. "The equal protection clause commands the elimination of racial barriers," he wrote in that dissent, "not their creation in order to satisfy our theory as to how society ought to be organized." Had the DeFunis case been dealt with on its merits then, and had Douglas's views prevailed, the subsequent history of affirmative action in America might have been very different.

The case in support of racially preferential admissions was made as forcefully and as sympathetically as has ever been done, by the Washington Supreme Court in upholding this law school's preferential devices. The intellectual and legal foundations of that arguments, its thoughtfulness and its good spirit, are illuminated in the essay below in order to confront that argument squarely and to show why, even with the best of intentions, it cannot succeed under our Constitution. A detailed restatement of the position shared by the law school and the Washington Supreme Court is therefore given first. The attach follows.

Although the U.S. Supreme Court held this case moot, it did then issue what amounted to an invitation to others to return with like grievances that were not moot. By the time such cases came before them once again, however, Justice Douglas had left the Court, and racially preferential admissions had become widely ensconced in professional schools. The particulars of the admissions system devised at the University of Washington have been changed over the years, of course. But its most fundamental feature — giving preference in admission by race — remains in force in law schools across the country. Some of the predictions made by Justice Douglas and others in the discussion of DeFunis, regarding the consequences of such preference, have been all too painfully realized. Some of the arguments presented briefly in this essay are pursued at greater length in connection with other cases, in essay appearing later in this book.

(*) End notes will be found at the conclusion of each part. References to court cases usually contain three elements: the name of the series of reports in which a given decision appears, preceded by the number of the volume in that series, and followed by the page number in that volume. The date may follow in parentheses. Decisions of the U.S. Supreme Court are published in United States Reports, abbreviated as U.S. Thus, the reference to DeFunis v. Odegaard appears as: 416 U.S. 312 (1974). When a particular is cited, the page number of that passage will also appear in this note.

1 Race and the Constitution(*)

All persons, without regard to race or religion or national origin, are equal before the law. The equal protection of the laws, expressly guaranteed by the U.S. Constitution, seems the plainest and most comprehensive requirement of justice. No sophistication is needed to appreciate its force; the common conviction that categories like race have no bearing upon the just application of law is dramatized by the blindfold that the Goddess of Justice wears while balancing her scales.

That conviction was made concretely applicable by the Supreme Court in 1954, in Brown v. Board of Education, condemning the "separate but equal" treatment of the races. It reached its apogee in the Civil Rights Act of 1964, condemning discrimination "because of race, color, religion, sex, or national origin" in virtually every public sphere. Splendid. Or is it? The answer given sometimes appears to depend upon whose ox is gored.

The ideal of blindfolded equal treatment, as applied to racial groups, encounters competing principles of compensatory justice. It is all very well to laud equality before the law; but when generations, or centuries, of discrimination and outright oppression based on race or ethnic origins have left minority groups in conditions of distressingly marked disadvantages, even-handed treatment cannot yield equal results. Affirmative action in pursuit of just outcomes, deliberate efforts to compensate for past wrongs, must be undertaken.

Affirmative action has many species. The arguments for and against one or another of these species are many and tangled. My aim in what follows is to explore a single slice of these controversies: the preferential admission of members of minority groups to programs in higher education. The issues raised in it are delicate and important; they will certainly recur.

Using the case of DeFunis v. Odegaard, I propose to examine the central arguments upon which resolution of these issues will probably depend. Than eventual resolution will come through judicial interpretation of constitutional principle. In giving concrete meaning to venerable principles, the courts — ultimately the Supreme Court — decide not simply what our Constitution requires but what it ought to be understood to require. In many matters, courts give clear moral guidance; judicial reasoning functions as moral reasoning.

In March 1973, the Supreme Court of Washington decided in favor of the University of Washington (Charles Odegaard then president) against Marco DeFunis, a white, male applicant to the university's Law School, who claimed that the system of admission applied by that school, incorporating deliberate preference for members of minority groups, and resulting in his rejection, had denied him the equal protection of the laws. A lower court that had supported DeFunis was reversed; but its order obliging the university to admit him had remained in effect during the three years of ensuing litigation. It was DeFunis's impending graduation from that law school in the spring of 1974 that gave grounds for the ultimate holding by the U.S. Supreme Court that the case was moot.

DeFunis's central contention was that the admitting procedures of the University of Washington Law School (hereafter, the Law School) applied a double standard — one measure for minority group members, another for the rest — in such a way as to violate that clause of the Fourteenth Amendment of the U.S. Constitution which guarantees to all persons "the equal protection of the laws." It was reasonable, he argued, for the Law School to make admissions judgments among competing applicants based upon evidence of many different sorts — academic and nonacademic, numerical and nonnumerical — so long as that evidence was relevant to the program of study to which admission was sought. It was not reasonable or lawful, he claimed, for the measures used, whatever they were, to be applied in a systematically differential way to certain sets of persons for no other reason than that such persons were (or were not) members of racial or ethnic minority groups. The University of Washington did not dispute the fact that it gave preferential treatment to such groups in the fierce competition for the relatively few law school slots available each year. But such preference, based on race or national origin, DeFunis contended, is precisely what the equal protection of the laws precludes absolutely.

DeFunis lost, in a decision of the Supreme Court of Washington that stands as the most cogent and persuasive defense of preferential admissions extant. I propose to reconstruct the argument of that decision, to construct the most solid and plausible counterarguments, and to explain why one side of the argument fails.

The facts about DeFunis's application and rejection were not in dispute, and may be summarized briefly. A Washington resident, his academic performance as an undergraduate was very good (junior-senior grade-point average of 3.71 of a possible 4.0), and his performance on the Law School Admission Test (LSAT) placed him in the top 7 percent nationally. His overall credentials, academic and personal, were outstanding. He was nevertheless denied admission to the Washington Law School in 1970 and in 1971.

During those years the Law School used an affirmative action admissions system under which minority applicants were considered separately from all others. The university aimed at a "proportionate representation" of minority students, and therefore affirmative action applicants needed to compete only against each other for the 16 percent of the seats that had been set aside for them. The standard for the admission of minority applicants was admittedly much lower than that for (one judge later reported): "were some whose college grades and aptitude scores were so low that, had they not been minority students, their applications would have been summarily denied."

Had there been no system of preferential admission it is probable, but not certain, that DeFunis, high on the waiting list, would have been admitted. It is certain that, had there been no such system, some of the white applicants with fine records who were rejected would have been admitted. DeFunis was a young man with superior abilities and an excellent record. Some of the minority admissions were, all agree, of uncertain ability and mediocre record. There lies the nub of the complaint. Because of the preference given to some on the basis of race or ethnicity, others (in circumstances like those of DeFunis) were denied admission on the basis of their race or ethnicity.

The complaint is plausible but problematic. This was obviously not a case of racial discrimination in the historical exploitative mold. If there was racial discrimination here, its evident and honorable objective was not to maintain inequality but to overcome an inequality that had become deeply rooted. The Law School had devised a deliberately compensatory instrument, honestly aimed at justice over the long run. Of course, long-term justice was sought with equal fervor by DeFunis and his defenders, who did not deny the historical facts of racial oppression or contest the need for some compensatory action. The two sides concurred in calling for affirmative action, positive steps aimed at uprooting a long-ensconced pattern of racial injustice.

In pursuit of this objective, what instruments are constitutionally permissible? That is the key question here. The controversy is no between good guys and bad guys, but between sophisticated parties who differ about what, in the effort to achieve a pressing and difficult end, we may rightly use as means.

(*) This chapter was first published in The Nation, vol. 220, no. 5 (February 8, 1975). It appears here, slightly abbreviated, with the kind permission of the publishers of The Nation magazine. I acknowledge a special debt to the late Carey McWilliams, editor of The Nation at that time, who strongly encouraged the writing of this essay.

MERCHANT PRINCES
An Intimate History of Jewish Families Who Built Great Department Stores

---

By Leon Harris

KODANSHA INTERNATIONAL

Copyright © 1994 Oscar Handlin. All rights reserved.
TAILER

Table of Contents

Prologue: What Is Affirmative Action?	1
A. Racial Preference in Law School Admissions	7
DeFunis v	Odegaard
1. Race and the Constitution	11
B. Racial Preference in Medical School Admissions	39
Regents of the University of California v	Bakke
2. Who Are Equals?	45
3. Equality, Diversity, and Good Faith	55
C. Racial Preference in Employment	81
Steelworkers v	Weber
4. Why Racial Preference Is Illegal and Immoral	85
5. Justice Debased: The Weber Decision	115
D. Quotas, Goals, and Ethnic Proportionality	145
Wygant v	Jackson Board of Education
6. Naked Racial Preference	149
E. Heads of the Hydra	169
From Firefighters to Adarand (1984 - 1995)
7. Preference as a Remedy for Racial Injury	173
8. When Is a Racial Remedy Justifiable?	177
9. When Is a Governmental Interest Compelling?	181
10. Racial Preference through Set-Asides	185
11. Racial Preference by Federal Policy	195
12. The Road to Hell Is Paved with Good Intentions	211
Epilogue: The Future of Affirmative Action	229
Postscript	235
About the Author	243

Editorial Reviews

Cohen (Civil Disobedience), a philosophy professor at the University of Michigan, offers carefully argued critiques of what he calls the often-contorted reasoning behind judicial decisions upholding affirmative action. In this collection (mainly articles previously published in law reviews and magazines such as Commentary), Cohen deconstructs notable cases (e.g., Bakke and Weber) and analyzes such issues as the vaguely defined legal standards (e.g., a ``compelling'' government interest). However, Cohen's antipathy toward racial preference does not extend to other preferential programs (What about gender? Alumni legacies?), and his proffered solution-policies that do not involve classification by race-doesn't necessarily address our society's embedded racism. (Oct.)

Publishers Weekly - Publisher's Weekly