Why is affirmative action constitutional

Justice Lewis F. Powell Jr. Of significance, he relied in part on the First Amendment. The freedom of a university to make its own judgments as to education includes the selection of its student body. Powell subsequently argued that the university could exercise its freedom to give some weight to race in its admissions process, as long as it did not use strict quotas, as he believed the University of California had improperly done.

The Court encountered two similar cases in New Hampshire and Keyishian v. The majority fails in its summary effort to prove this point. The Court did not raise the First Amendment in the companion case of Gratz v. Bollinger , in which Chief Justice William H. With recent changes on the U. Supreme Court, it may well revisit this issue in the near future.

He is co-editor of the Encyclopedia of the First Amendment. This article was originally published in Eastland, Terry. New York: Basic Books, Affirmative action stamps minorities with a badge of inferiority, stigmatizing them in the eyes of others. An alternative solution that neither stigmatizes nor harms is needed to ensure that traditionally underrepresented communities have a place in schools and the workplace.

Although it is important that traditionally underrepresented communities have equal opportunity and an equal chance to thrive, deserving individuals should not be disadvantaged to achieve this goal. Although the Supreme Court has held that remedying past discrimination is not a valid reason for the government to consider race, it has sustained the use of race to promote diversity. But this justification continues to promote inequality and effectively acts as quotas; universities and employers have increased spots for African Americans and Latinos at the expense of whites and Asian Americans, thereby stoking feelings of resentment and racial animosity.

Affirmative action harms the very groups it was designed to help. The minority students who gain admission to a university on the basis of grades, test scores, extracurricular activities, and other merit-based criteria will never know whether they were admitted because they earned it or because of an affirmative action policy that considered their race. Perhaps even more damaging, other students, faculty, and prospective employers may assume that these students were only admitted because of affirmative action and not because they earned their place independent of their race.

Affirmative action creates doubts about whether the people in question could succeed on their own merits.

It might even set them up for failure if, in fact, they benefited from an affirmative action policy but were unprepared for the demands ahead. In an address, African American abolitionist Frederick Douglass implored well-meaning whites to stop meddling in the affairs of African Americans:. 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. 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! All I ask is, give him a chance to stand on his own legs! Let him alone! African American Justice Clarence Thomas quoted this passage in his dissent in the university affirmative-action case Grutter v. Bollinger in arguing that affirmative action policies were unconstitutional.

Although the Supreme Court continues to allow affirmative action policies that take race into account, its days may be numbered because alternative policies that do not have constitutional problems—such as aggressive search and outreach programs, swapping socioeconomic diversity for race, or automatically admitting the top 10 percent from every high school class—become more widely used.

Seattle School District No. Use Handout A: Point-Counterpoint Graphic Organizer to answer historical reasoning questions about this point-counterpoint. Fisher v. University of Texas, Austin. Grutter v. Regents of the University of California v.

Douglass, Frederick. Bollinger , U. Parents Involved in Community Schools v. Ball, Howard. Perry, Barbara A. The Michigan Affirmative Action Cases. Colby, Tanner. February 10, Fillat, Andrew I. December 6, Hsu, Hua. As it stands, Harvard cannot argue in court that its race-conscious admission program attempts to correct past wrongs; rather, it simply enables the assembly of a diverse student body from which the entire community benefits. I do not contest the significance of diversity; it has been a highlight of my Harvard experience to interact with and befriend peers embodying diversity of all shades: geographic, academic, ideological, socio-economic, and yes, racial.

One might argue that group-rights-based remedial affirmative action policies penalize an innocent white applicant for harms committed in the past, or even that such policies might benefit a Black applicant no longer facing grievous discrimination, and as such are inconsistent with individual-rights jurisprudence.

It is clear, however, that group harms were committed solely on the basis of race, and a group rights approach to remedy those should not be inconceivable. The experiences of George Floyd, Treyvon Martin, Breonna Taylor, and countless others serve as a testament to the fact that law divorced from ground realities cannot achieve justice. Lastly, the diversity argument neglects the legacy of slavery and oppression in the United States. It seems unfair, then, to expect minority students to offer transformational perspective and insight for the benefit of their non-minority peers in the name of diversity.

Diversity can be construed in myriad ways, some completely unrelated to affirmative action. A university might consider diversity of political views an admirable educational objective, but that has nothing to do with the racial legacy of the United States.

But mathematical or musical talent was not the basis for slavery, or segregation, or Jim Crow. Race was, and affirmative action must first correct for racial discrimination.