I Promised I Would: Affirmative Action

Class: Constitutional Law

Professor: Guliboff

Topic: Affirmative Action

This is my attempt at what I think is an apt analogy to the doctrine of affirmative action:

Suppose I get burglarized. I call the police and run through all the bullshit and I never figure out who did it. I then rationalize a right to burglarize my neighbor. When he calls the police on me, do you think a valid defense would be to say "yeah I stole his stuff, but it's OK because someone else stole my stuff!" Probably wouldn't work.

But this is exactly how affirmative action works. There has been a harm to a group in our nation's history, and this somehow justifies committing a harm on another group regardless of whether the individuals bearing the burden are innocent or guilty of the original harm.

To make matters worse, the benefit of affirmative action does not even necessarily run to harmed individuals of the originally harmed group. Status in a group is the only prerequisite to whether you will be harmed or benefited regardless of whether you were culpable in the original harm or burdened by it.

So I should revise my analogy. I get burglarized, and then my neighbor goes and burglarizes someone in a different building with the rationalization that someone in his defined group (a resident of our building) was harmed. He gets the benefit of the second burglary, even though he was not a party to the first.

The whole problem in affirmative action is the law focusing on groups instead of individuals. That view distorts our understanding of justice and, in Thomas' opinion, creating the group is the harm itself.

Interestingly, the majority of the Supreme Court did find a harm principle in affirmative action cases. In Adarand, the Court required all racial classifications be subjected to "strict scrutiny" because "whenever the government treats any person unequally because of his or her race, that person has suffered an injury ..." Despite this finding of harm, the Court in Grutter allowed the affirmative action program of Michigan's law school to go forward because it had a "compelling interest in diversity." I still can't understand how diversity at a law school trumps a constitutional decree of being free from harm caused by unequal protection of the law; but hey ... maybe diversity really is that great.

O'Connor, in Adarand, agreed that there was harm in racial classifications by their very nature, but limited her comments to the more ethereal types of harm that Thomas always cites which run to the supposedly benefited groups. The harms she didn't discuss are the ones running to third parties after an application of a race determined "point" system in a fixed pie scenario like law school admissions. Law school is not some utopia of abundance where the principles of economy do not exist. When applicants of a pool are competing against one another for slots (which demonstrates the limited resources) any preference given is a detriment to those who did not receive it also. This detriment does not just run against whites when the program is attempting to place blacks. It runs against everyone else. This includes Asians, Hispanics, and whatever other race you want to make up. Many races (but more importantly individuals) that had nothing to do with our country's history of racism are burdened.

The absurdity award for Grutter doesn't go to the 'diversity trumps constitutional protections' rationale however. In part three of her majority opinion - in which Scalia and Thomas tactically joined - O'Connor stated "[w]e expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today." Wow ... the Constitution will magically change in 25 years and not allow racial classifications for the purpose of diversity. This was the first (and hopefully last) time a sunset provision was written by a Supreme Court Justice into our Constitution.

Stevens, Breyer and Ginsburg would not even require "strict scrutiny" review of "benign" racial classifications which aim to help minorities. They refuse to see any harm, or at least look past it. Chiding the majority in Adarand:

There is no ... constitutional equivalence between a policy that is designed to perpetuate a caste system and one that seeks to eradicate racial subordination. Invidious discrimination is an engine of oppression, subjugating a disfavored group to enhance or maintain the power of the majority. Remedial race-based preferences reflect the opposite impulse: a desire to foster equality in society.

What Stevens et al. believes, is that they have the ability to separate harmful race-based laws from the helpful. This is quite an impossible task. What makes it impossible is, again, the insistence on using group membership to define an individual's status. Thomas, in one of his best dissents I have ever read, takes the Grutter plurality to task:

I believe what lies beneath the Court's decision today are the benighted notions that one can tell when racial discrimination benefits (rather than hurts) minority groups, and that the racial discrimination is necessary to remedy general societal ills ...

The Law School tantalizes unprepared students with the promise of a University of Michigan degree and all of the opportunities that it offers. These over-matched students take the bait, only to find that they cannot succeed in the cauldron of competition. ... [T]his mismatch crisis is not restricted to elite institutions. Indeed, to cover the tracks of the aestheticists, this cruel farce of racial discrimination must continue - in selection for [law review and law firms]. And the aestheticists will never address the real problems facing 'underrepresented minorities,' instead continuing their social experiments on other people's children ...

I would just add to Thomas' "harms" running to the supposedly "benefited" the social stigma that they face at school. If a young black man with a great LSAT score and great GPA goes to Michigan after this case and tells the admissions board not to give him deference because of his race, there is still no way to prevent his classmates from making assumptions about how he got in. The school is attaching the stigma to all members of a certain group which is unfair. Interestingly, O'Connor, in Adarand, saw the likely effects of this line of thinking:

Even though it is not the actual predicate for this legislation, a statute of this kind inevitably is perceived by many as resting on an assumption that those who are granted this special preference are less qualified in some respect that is identified purely by their race. Because that perception - especially when fostered by the Congress of the United States - can only exacerbate rather than reduce racial prejudice, it will delay the time when race will become a truly irrelevant, or at least insignificant, factor.

It is surprising that she did not join part VI of Thomas' dissent in Grutter.

I would encourage everyone to read both cases in their entirety, but especially Thomas' dissent in Grutter. He summed up the problems with affirmative action extremely well. I'll leave you with his opening volley where he quotes Frederick Douglass speaking to a group of abolitionists 140 years before this decision:

In regard to the colored people, there is always more that is benevolent, I perceive, than just, manifested towards us. What I ask for the negro is not benevolence, not pity, not sympathy, but simply justice. The American people have always been anxious to know what they shall do with us ... I have had but one answer from the beginning. Do nothing with us! Your doing with us has already played the mischief with us. Do nothing with us! If the apples will not remain on the tree of their own strength, if they are worm-eaten at the core, if they are early ripe and disposed to fall, let them fall! ... And if the negro cannot stand on his own legs, let him fall also. All I ask is, give him a chance to stand on his own legs! Let him alone! ... [Y]our interference is doing him positive injury.