The cases brought to the supreme court or the lower, court of appeals generally are of one flavor. A white plaintiff complains that they have been disenfranchised by AA policies on the basis of the Equal Protections Clause of the 14th Amendment to the Constitution or Title VI of the Civil Rights Act of 1968. Then the court decides whether these AA policies are constitutional or not.
So before we look at examples, we must first understand what both the Equal Protections Clause and Title VI state. The Equal Protections Clause states:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws (emphasis added).Title VI is very detailed but put simply, it prevents discrimination on the basis of race, color, or national origin by entities receiving federal dollars, according to the EPA. It is an extension to the EPC.
Let's look at two notable supreme court cases regarding AA that were both decided in 2003:
Gratz V. Bollinger and Grutter V. Bollinger.
The reason both of these are V. Bollinger is because both took place at the University of Michigan, where Lee Bollinger was the President, and therefore the defendant.
Gratz V. Bollinger asked the question:
Did the University of Michigan's use of racial preferences in the undergraduate admissions violate the Equal Protection Clause of the 14th Amendment and Title VI of the Civil Rights Act of 1964?
The answer in this case was yes. Why? So at the time University of Michigan Admissions was using a point system that gave racially diverse applicants 20 points. These additional points made admission almost automatic for these applicants. The University of Michigan was in effect, holding seats for racially diverse applicants and practically was a racial quota. This is against the EPC and Title VI and these policies were deemed unconstitutional.
Grutter V. Bollinger asked the question:
Does the University of Michigan Law School's use of racial preferences in student admissions violate the Equal Protections Clause of the Fourteenth Amendment or Title VI of the Civil Rights Act of 1964?
The answer in this case was no. Why? So at the time University of Michigan Law School considered each applicant separately, with an additional consideration for minorities. This meant the race was used as a method to increase diversity. And in the previous blog, we talked about Regents of UC V. Bakke. This case set a precedent for allowing AA for the purpose of diversity because diversity was seen as in the interest of the US government. For this reason the policies were deemed constitutional.
The reason I chose these two cases was that the justices on the supreme court remained the same, between these two cases and the positions of these justices likely didn't change in one year. The only variable changing is the type of admissions policy, making this a good comparison for understanding. We now understand that racial quotas are strictly unconstitutional. But if the applicant's race is considered as part of their holistic person for the purpose of achieving diversity it is constitutional. And as a reminder EPC and Title VI do not have to be considered for companies and universities not receiving federal dollars.
AA does have some ethical concerns along with the constitutionality concerns voiced above. A gain in opportunity for a minority, inherently leads to the loss of an opportunity for members of the majority. How do you decide whether a majority member deserves to lose their spot for a minority? Let's say hypothetically, a caucasian emigrates from Switzerland to the US. They apply to Penn State with competitive test scores, but they aren't admitted because a minority member replaced them through AA. The Swiss have had very little to do with the historical disenfranchisement of minorities in the US. Does the Swiss immigrant deserve to have their spot "taken?"
These questions are ideas for comments. For the next blog we'll crunch numbers to see if affirmative action really works.
