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Affirmative Action Should Be Ruled Unconstitutional

by Margaret Beck | University of Florida

F Posted in: News and Politics, Voices P Posted on: February 27, 2012
Margaret Beck Margaret Beck

Does affirmative action serve its intended purpose in today’s educational system? More importantly, is it constitutional for admissions decisions to be partially based on an applicant’s race?

Last week, the Supreme Court agreed to hear Fisher v. Texas, a case which raises questions about affirmative action policies. The plaintiff, Abigail Fisher, applied to the University of Texas and believes she was denied admission because she is white. The case, which will be heard in October, argues affirmative action is a form of reverse discrimination against non-minorities and, therefore, is unconstitutional.

Initially designed to protect minorities from workplace discrimination, the concept of affirmative action was established by a 1961 executive order from President Kennedy that declared all federally-funded institutions must take “affirmative action” to not be racially biased during hiring processes. The Civil Rights Act of 1964, designed to protect equal employment regardless of applicants’ “color, religion, sex, or national origin,” promoted national awareness of affirmative action. Universities followed suit by using race as a factor in admissions decisions.

Today, African-Americans and other minorities hold political office, work at high-paying jobs, and attend universities. The racial discrimination that previously existed has long since been banished to the darker chapters of our nation’s history. Affirmative action is no longer necessary, especially considering the fundamental law protecting equal rights for all men, sentiment echoed in both the Bill of Rights and the 14th Amendment. Meanwhile, students like Abigail Fisher wonder if they would have been accepted to school if they were of a minority race. Affirmative action, though well-intentioned, has been overused to the point of contradicting the fundamental beliefs of our nation.

As discrimination and racial tensions diminished, affirmative action became more closely scrutinized. While supporters of affirmative action argue that the measure is needed to ensure diversity of various student bodies, opponents argue that the measure is not even being used as it was intended.  According to a study conducted by Princeton University and the University of Pennsylvania, universities prefer to fill their informal minority ‘quotas’ or ‘targets’ with applicants from overseas, who typically have privileged backgrounds and are wealthier than American minorities. Perhaps a bias still exists – universities prefer green!

Others say that universities should only consider academic merit, regardless of race. Beginning in 1996, cases in Arizona, California, Connecticut, Florida, Michigan, Nebraska and Washington echoed this sentiment.  Most of those states have put the issue to a vote, enacting propositions prohibiting affirmative action. Michigan has provided the most complex analysis of the topic, with two cases in 2003 involving the University of Michigan and its Law School.

Gratz v Bollinger determined that the “extra point system” used to boost minority application status was unconstitutional, yet justices upheld the university’s policy of giving minorities preferential admissions treatment in Grutter v. Bollinger. Three years later, Michigan residents voted to prohibit affirmative action except where explicitly required by the federal government. Even though voters spoke, that proposition was overturned by an appeals court.

Overall, recent years have brought a wave of suits whose plaintiffs reflect common sentiment – affirmative action is not only unconstitutional, but also has outlived its usefulness. Forty years ago, the Supreme Court may not have given Fisher v. Texas a passing glance. Times have changed. Public opinion of minority races has justly improved. Our nation fully reflects our fundamental values of equal rights.

Legal scholars seem to think Fisher v. Texas may decide the future of affirmative action. A liberal majority ruled the Supreme Court in 2003 when the University of Michigan’s policies were reviewed.  Justice O’Connor had said, “Racial diversity is an essential part of higher education’s mission.” Now that Justices Alito and Roberts have joined the court, a more conservative voice is emerging. Based on their history on the bench, Justices Scalia and Thomas are expected to rule against affirmative action, possibly joined by Justice Kennedy.

Whatever their decision, the court will provide a monumental ruling that will affect the futures of students for years to come. In the meantime, I concur with students such as Abigail Fisher, who believe affirmative action should not hinder a fair chance at college admissions.

Margaret Beck Margaret Beck Margaret Beck, a NGJ Voices Contributor and recent University of Florida graduate, is pursuing a joint MD/JD program. She writes with a conservative voice on medical issues, politics, and Middle East affairs.

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