I: The Better Part of Justice

Table of contents

Through two separate cases and decisions respecting the affirmative action policy at the University of Michigan, the Supreme Court offered two opposite opinions on the same question—striking down the university’s undergraduate College of Literature, Science and the Arts (LSA) affirmative action policy (Gratz v. Bollinger, 6-3) in 2003 and upholding the University of Michigan Law School’s (UMLS) affirmative action policy (Grutter v. Bollinger, 5-4) at the same time. However, the specific reasoning for each of the two different opinions explains the court’s seemingly contradictory rulings.

In the Grutter v. Bollinger decision of this reverse discrimination challenge, the Supreme Court agreed that the State had a compelling interest in an ethnically diverse student body at UMLS which afforded applicants who are ethnic minorities a greater regard in their candidature for acceptance to the law school. UMLS considered candidates holistically and did not award them points solely on the basis of their ethnic minority status.

The Court held that the practice is not prohibited by the U.S. Constitution and was in keeping with the narrow tailoring set forth by Regents of the University of California v. Bakke, 438 U.S. 265 (1978) for how affirmative action admission policies might be devised when informed by the Fourteenth Amendment. Moreover, the Court said that the affirmative action policy ought not to be permanent and should be replaced by a color-blind policy after twenty-five years at which time affirmative action in admissions should no longer be necessary.

Concerning Gratz v. Bollinger, the Court’s opinion was opposite the Grutter case finding that the affirmative action policy used by LSA was a violation of the Fourteenth Amendment. Unlike UMLS, LSA automatically awarded points to ethnic minority applicants on the basis of their minority ethnicity alone as opposed to the special consideration of each candidate as an individual like UMLS did.

Thus, the Court sided with the plaintiffs against Bollinger because of the automatic nature of the preferential treatment of ethnic minority candidates for no other considerations than race. This was viewed as a blatant violation of the U.S. Constitution because the numeric system was not narrowly tailored and failed to meet the standard of strict scrutiny.

It is clear from these two cases and Supreme Court decisions that affirmative action as a means to student diversity was not in contention for the Court but rather the administration of any such policy. The how was the real heart of the matter and not whether such a policy was needed at this point in time in American history. As in almost any case, it is the details that ultimately determine the court’s as well as the public’s opinion on an issue before them.

The Affirmative Action Controversy

Ironically, Boatright’s “No” (p. 179) column against affirmative action on the whole were more compelling arguments in support of why the U.S. government should implement affirmative action in employment and in education than the “Yes” (p. 178) column favoring the policy. Although Justice O’Connor appealed to research in social science in her composition of the majority decision, like the “Yes” column arguments seem to do, the logical thinking of the “No” column appeals to reason and justice.

When relevantly compared to the almost four centuries of societal and institutional discrimination and prejudice, the view that affirmative action promotes a victim mindset is an incompetent argument and becomes fallacious. The logical argument is that the very maltreatment itself is the greatest cause of any sense of victim identity as it would be in a criminal case (e.g., rape, assault, mugging, etc.).

Contrarily, affirmative action is likely to foster a sense of relief or appreciation like when the criminal that victimized someone is caught. Furthermore, special consideration in getting a foot in the door of a school or job does not ‘taint’ the work or confidence of individuals—as we see from the privileged access white ethnics have enjoyed in the Americas since the 1600s—who understand the difference between access and performance and are often anxious to prove their worth for which the lack of access is a barrier.

Once access is granted to those it has been denied, they desire to “succeed or fail on an equal basis” (p. 179) just as any other privileged class claims to desire. Although racial tensions may arise, it is a stretch of the imagination to argue that affirmative action is somehow worse than racial prejudice and discrimination respecting racial tensions or anything else. One day the pernicious effects of racial discrimination may well be in the past like American slavery is but they are not past yet.

Sparing white ethnics from reverse discrimination sometimes is inadequate as a defense for maintaining the status quo in the quixotic hope that institutional prejudice and discrimination against ethnic minorities will someday just fade away. Certainly, the abundant evidence of discrimination is comparable to the special preferences afforded war veterans, Holocaust victims, 9/11 attack victims, their families, and affected businesses as well as displaced victims of Hurricane Katrina.

Like the Tsunami victims in 2004 half the world away, the U.S. government recognizes by its own actions that victims of disaster, domestically or internationally, require some type of preferred assistance to overcome the devastating effects of something inflicted upon them. Victims of the long-lasting effects and consequences of the peculiar institution of slavery in the U.S. are just as deserving of special consideration as victims of events or forces that warrant special attention from the FEMA or the Red Cross or any number of other governmental and non-governmental organizations domestically and internationally which are dedicated to providing assistance to affected persons with particular regard to race.

For example, these organizations would not locate themselves in England but in Ethiopia or Indonesia or Haiti. Moreover, because the aim of affirmative action is to increase ethnic diversity in colleges and universities and access to employment it does not explicitly quash the special privileges enjoyed by white ethnics with regard to access to higher education or gainful employment.

The idea that race-neutral criteria can work, or are even just in this job/school context given the longstanding social history of the condition, to correct the tremendous inequities caused and maintained by institutional discrimination against ethnic minorities is unrealistic at best and underhanded in the least. It essentially is an argument for the status quo because it offers no compelling alternative public policy by which the object of ending racial inequity in schools and the labor market is begun.

It would restore the privileges of the ethnic majority unabated while relegating the ethnic minority(ies) of the nation to feed on the scraps from the table of the descendants of their former slave masters. It takes no stretch of the imagination to see how such a non-policy policy would be the very framework of wider racial tensions on par with the widening gap between rich and poor in the United States.


Grutter v. Bollinger, 539 U.S. 306 (2003) and Gratz v. Bollinger, 539 U.S. 244 (2003). Writs of Certiorari to the United States Court Of Appeals for the Sixth Circuit (Nos. 02-241, 02-516). Retrieved April 29, 2007, from http://www.oag.state.ny.us/press/2003/feb/grutter_vs_bollinger.pdf

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