Affirmative action violates the Constitution

The argument

Proponents of this position argue that affirmative action policies hurt Caucasians if less qualified minority students are admitted over them. The objection is directed at the criterion rather than at any particular applicant: for the sake of diversity, a wealthy person of color could be chosen instead of a poverty-stricken Caucasian, so race can decide the outcome while the disadvantage the policy is meant to address does not. On this argument merit is not taken into account, and the focus falls on diversifying an institution while providing “tailor-made” programs for minorities to thrive in. Caucasian people are not given the same “tailor-made” programs because of their race. What the policy distributes by race, it also withholds by race. The constitutional claim is that this is not merely unfair but unlawful. For instance, two of three prominent Supreme Court cases dealing with affirmative action programs in education have relied on the First and Fourteenth Amendment, which is where proponents locate the guarantee at issue: a rule that treats applicants differently according to race is, on their reading, what an equal-treatment guarantee forbids. Regents of the University of California v. Bakke (1978) is offered as the illustration. University of California at Davis had denied admission to Alan Bakke, a white man, despite his grades and test scores being above those of the 16 African Americans selected for an entering class of 100 students. Four justices admitted Bakke on the basis that all considerations of race was morally wrong under the Fourteenth Amendment in circumstances where the school had no past history of racial discrimination. Proponents treat that qualification as the heart of the matter. Where an institution has no record of discrimination to remedy, race-conscious admissions are not correcting an injustice but creating one.

Premises

Counter-arguments

The account of the case is inaccurate, and the case is the argument's only evidence. In Regents v. Bakke the Court fractured: four justices would have upheld the programme outright, four decided against it on statutory grounds without reaching the Fourteenth Amendment, and Justice Powell's controlling opinion struck down the fixed sixteen-seat quota while holding expressly that race may be considered as one factor among many in pursuit of educational diversity. The ruling therefore did not establish that all consideration of race is unconstitutional; it established close to the opposite, and that reading governed admissions law for decades afterwards, reaffirmed in later cases upholding narrowly tailored race-conscious programmes. The constitutional question has also moved rather than been settled. The 2023 ruling in the Harvard and North Carolina cases ended race-conscious admissions at the institutions before the Court — which means 'violates the Constitution' describes a currently prevailing holding arrived at after decades of contrary doctrine, not a fixed feature of the text. The conclusion needs a further step in any event. Constitutionality and racism are distinct questions: policies have been held unconstitutional without being racist, and lawful for long periods while being racist. Establishing the first does not establish the second. The merit premise is contested as well. Grades and test scores correlate substantially with family income, schooling and test preparation, so treating them as the measure of merit assumes what defenders of these programmes dispute.

Rejecting the premises

[Rejecting P2] Bakke did not hold that all consideration of race is unconstitutional: the controlling opinion struck down the fixed quota while expressly permitting race as one factor among many, and that reading governed admissions law for decades. [Rejecting P1] Grades and test scores correlate strongly with family income, schooling quality and test preparation, so treating them as the measure of merit assumes the point in dispute.