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Jul 25 2017
by Jackie O'Neil

The Legal Case for Affirmative Action

By Jackie O'Neil - Jul 25 2017

"In order to get beyond racism, we must first take account of race. There is no other way. And in order to treat some persons equally, we must treat them differently.” When Associate Justice Harry Blackmun penned these words as part of the Supreme Court’s decision in Regents of the University of California v. Bakke (1978), he attacked the notion of a colorblind Constitution.

Civil rights activists in the early 20th century had latched onto Justice Harlan’s 1896 dissent in Plessy v. Ferguson, falsely believing that the antidote to racist interpretations of the Constitution could be a constitutional interpretation that simply ignored race. Justice Blackmun saw a different recourse to racial issues that had plagued the country since its colonial origins. In his mind, as long as race continued to be a cause of inequality, it would deserve consideration in the application of the Constitution.

Justice Thurgood Marshall agreed; in his opinion for the Bakke case, he asserted that it would be inconceivable to believe that the same "Congress that considered and rejected the objections to the 1866 Freedmen's Bureau Act concerning special relief to Negroes” would also intend the Fourteenth Amendment "to prohibit all race-conscious relief measures.” The Bakke decision allowed admission policies to acknowledge race as one of several factors in applicant evaluation as long as schools did not use objective racial quotas to achieve diversity. A later case, Grutter v. Bollinger (2003), upheld affirmative action and maintained that colleges were free to use race as a consideration in admissions policies. But why?

Most arguments about affirmative action today center around one trade-off: Should affirmative action allow minority students a special advantage in the admissions game as a concession for the lasting effects of slavery and the oppression and discrimination that they continue to face? 

Some say that white people have an opportunity to move toward “making up” for our stained history. Others argue that we shouldn’t be held accountable for sins that our ancestors committed. But we’re going about these arguments in the wrong way. When we center our arguments around this trade-off, we overlook a small, nuanced detail in Justice Sandra Day O’Connor’s majority opinion in Grutter v. Bollinger. She writes: “[The Constitution] does not prohibit [the] narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body.” 

Affirmative action represents a compelling state interest because the benefits of diversity in education extend to all students, regardless of race. Therefore, it complies with the Fourteenth Amendment’s requirements for strict scrutiny, which must be satisfied when states make distinctions based on race. Stated more simply, affirmative action is legal because it is beneficial for everyone. In practice, it’s possible that affirmative action is a step toward correcting historical inequity by giving minorities a leg up in fields in which they have long been disadvantaged. But the real, legal, constitutional argument for affirmative action has little to do with the transcendent, powerful goal of striving toward equality by rectifying America’s history of oppression. Affirmative action wins because diversity helps all of us to become better citizens — and that’s what education should be all about.

Lead Image Credit: Elvert Barnes via Flickr Creative Commons

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Jackie O'Neil - Stanford University

Jackie O'Neil is a freshman at Stanford University passionate about politics, constitutional law, and cookie dough. To keep up with Jackie's shower thoughts, The West Wing references, and brunch photos, follow her on Twitter at @_jackieoneil or on Instagram at @jackieoneil

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