My FindLaw Column Today on Affirmative Action Bans
My column on FindLaw's Writ today is titled Universities Adjust to State Affirmative Action Bans: Are the New Programs Legal? Are They a Good Idea? In it, I consider 5 approaches to boosting minority enrollment in states, like Michigan, California, Washington, and Florida, that ban race-conscious affirmative action: (1) Open or lottery-based admissions; (2) Class-based affirmative action; (3) Guaranteeing admission to all public high school students who graduate at or near the top of their class; (4) Considering "prejudice or discrimination overcome" as an admissions criterion; and (5) Improving the quality of secondary education.
I'd be quite interested in hearing about other approaches that have been tried or proposed.
I'd be quite interested in hearing about other approaches that have been tried or proposed.
posted by Michael C. Dorf @ 1:36 PM
4 Comments:
At 3:34 PM,
Brian said…
In your comments on state opposition to affirmative action at the university level, you state that "If our elementary and secondary schools were doing a better job instructing minority students, then there would arguably be no need for affirmative action." The obvious implication (but perhaps I'm missing a subtlety) is that if we can measure a race/class distinction in results or outcomes, then it must be someone's else's fault, which in turn justifies quite conscious and explicit race/class based meddling in an attempt to equalize the outcomes?
I don't think I'm overstating the logic, either?
Thanks for your consideration,
Brian
At 9:09 PM,
Michael C. Dorf said…
In response to Brian's questions, note my use of the word "arguably" and my recognition elsewhere in the column that "culture and parental education" also partly explain different outcomes. If it turned out that these other factors were so overwhelmingly the cause of the outcome differences, then those would not be the schools' "fault," although it strikes me that one could still justify or oppose affirmative action regardless of whether the primary and secondary schools create the disparities in the first place. Or have I missed the thrust of this comment? Is it meant to suggest that the individual students are to blame for poor performance? If so, one would need an account of how racially identifiable GROUPS of students individually fail. The cultural explanation is the best candidate, but no one chooses the culture in which he is raised. And even if one subscribed to the view that inherent biological differences between the races explain group differences in scholastic performance (which I DO NOT), that still would not be the fault of any individual, since none of us is responsible for his or her inherent gifts or deficits.
At 10:18 AM,
egarber said…
In your piece, you point out that the SCOTUS will likely throw out supposedly "race neutral" approaches that have discrimination as the underlying "purpose" -- e.g., programs that in effect only offer scholarships predominately for white students, etc.
But for those with a purpose to ASSIST minorities, you guess that the courts wouldn't apply strict scrutiny, which I guess means it would be something closer to a rational basis test.
Anyway, my question:
What kind of test does the court apply in the first instance -- where the "purpose" or "effect" is to DENY minorities equal treatment? I mean, when is race implicated enough in examining the legislative debate or societal effect to trigger strict scrutiny (if that's even the test), vs. concluding that any racial impact is merely incidental?
At 3:16 PM,
PG said…
Somewhat similar to class-based affirmative action is one that the UC system was accused of using after aff action was banned in CA: zip code based affirmative action, in which students are given points based on whether they're from an underrepresented area. One could argue that this encourages housing segregation, just as "top 10%" plans encourage educational segregation, but given that we are supposed to be actively combating the latter with busing, etc. and have no way to affirmatively integrate housing, giving points for zip codes seems less problematic than taking the best students from the worst schools, who may be woefully unprepared.
On the subject of underpreparation, my personal preference is to have massive transfer programs from community and junior colleges into 4-year programs. Many high school students underperform because they are immature and don't take education seriously. A year in community college allows them to catch up in maturation as well as academic skills. It also shows the schools to which they apply whether the student can handle college level work. The hardest working students I knew at my alma mater were the transfers, who were excited to be at a flagship state U and determined to make the most of the opportunity. This system also means those flagship universities don't have to bog down their curriculum with remedial courses, and students don't have to bog themselves down with education debt if it turns out they're not ready, or not suited, for college and would do better in vocational training.
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