** Please note that this draft does not contain citations for the sources I used. I will add them in before the final draft is due. Thanks

Mark S. Ryan

CAS 138T

John Minbiole

27 March 2013

True Fairness *DRAFT

            One of the primary purposes of government, above simply protecting it’s citizens, is to fairly reallocate resources among it’s citizens to promote the general welfare of the state. The idea of a welfare state in politics is a relatively new one spawning from Europe in the late 19^th century. Before welfare policies, the role of government was to simply ensure the safety of its citizens, but today, the role of government has expanded far beyond that. Today’s governments are charged with many duties, from providing public goods such as roads, to ensuring financially stable retirements through social security programs. At the national level of the United States government, we generally perceive the reallocation of resources in the form of money and taxes. Taxes are taken from American citizens and used to pay for such welfare programs, which usually makes the country as a whole better off. One could not justify the government taking resources, namely wealth, from an individual if it did not promote the general welfare of the entire country.

The key issue our political realm deals with on a day-to-day basis is the concept of “fairness”. Politicians argue over if it is fair to take a certain resources from one party and give it to another. However, many, if not all, politicians would agree that it is not fair to reallocate a resource based on arbitrary factors. The government would not give tax breaks to people who have black hair over blonde, nor would the government tax people who wear dark clothing and not white. These principles hold steadfast when we talk about the resource of money. But we seem to abandon these values when it comes to the resource of education.

Like money, secondary education is a resource in this country that can be defined as scarce. A college education costs money, and some people are denied the opportunity to receive a college education simply because there are more people seeking educations than there are positions at educational institutions. Because of this, colleges and universities across the country have created a process which all high school graduate and college hopeful teenager fears: admissions. Throughout American history, the college admissions process has been largely left to the specific college’s will. A college can admit whomever they wish based on whatever criteria they want. It is common today that a large factor in the admissions process is a students merits and achievements. The government does play a role in college admissions when it comes to the race of applicants. The federal government does not allow schools to racially discriminate in its admissions process, based on the 14^th amendment and anti-discrimination acts. However, as upheld in several Supreme Court cases, the federal government does allow schools to allocate their open positions to students while using race as a factor. This is a glaring contradiction in policy dealing with college admissions, and brings up the question of “fairness” once again. But if it is already established that it is not fair to give tax breaks based on hair color, then how is it fair to allocate education based on skin color? Affirmative action is processes that is unconstitutional and perpetuates racial stereotypes rather than eliminate them.

To discuss the constitutionality of affirmative action, we must look at the Supreme Court case that gave universities and colleges the federal stamp of approval to use race as a factor in admissions. Grutter v. Bollinger is the most recent completed Supreme Court case that deals with affirmative action in admissions and was certain to have an influential impact no matter the outcome. The case came about when the law school admissions process at University of Michigan was challenged. The system at the time was like many admissions systems then and now. It gave the most weight to conventional merit-based factors in admissions such as GPA, LSAT scores, leadership achievements, etc. However, it did give some weight to other factors, including race. The admissions use of race as a factor was challenged and upheld by a vote of 5-4 in the Supreme Court.

The case was not at all clear-cut. It is obvious that schools cannot use race as a factor of admissions arbitrarily, for that would be a clear violation of the equal protection clause of the 14^th amendment. The justification for using race as a factor in admissions, as written by the majority opinion of the Court in this court case, says that a high level of diversity “has the potential to enrich everyone’s education and thus make a law school class stronger than the sum of its parts”. This may seem like a valid and logical argument, but it contains one fatal flaw in its logic. The Court says that diversity in an education environment may make the education stronger, which may be true, but it relies on the fundamental assumption that diversity is directly linked to race. This reasoning assumes that if everyone in a classroom has a different skin color, then the room is more diverse. This may be true in some cases, but it certainly could false in some instances as well. In fact, for the court to reason that skin color equates to ethnic and cultural diversity only perpetuates the racist ideal that people of different skin color should be treated differently. There are two scenarios that exist in our country that counter this logic: First is the case when there are two people of different skin color that have had the same cultural upbringing and therefore do not promote educational diversity when put in the same setting. The other instance is when we have two people of the same skin color that have been raised in different ethnic and cultural environments that would in fact promote diversity when put together in an educational environment.  Both of these situations show that the promotion of racial diversity is found on flawed, and racist logic.

Another aspect of the majority opinion of the Court in Grutter v. Bollinger is the concept of a “critical mass”. The law school stated in their defense of affirmative action:

“racial and ethnic diversity with special reference to the inclusion of students from groups which have been historically discriminated against, like African-Americans, Hispanics and Native Americans, who without this commitment might not be represented in our student body in meaningful numbers.”

The school continued to argue that it is necessary to have a “critical mass” of each racial group enrolled in the school. This is defined as a group of racially similar students that is big enough to ensure that a member of that racial group feels comfortable in expression their opinion without feeling like a miniscule minority, or feel as though their opinion is supposed to represent their race. The Court said that a “critical mass” is constitution because it “ensure[s] their [individual student’s] ability to make unique contributions to the character of the Law School”.

Again, this reasoning by the court lacks in sound logic and is based on fundamental racist assumptions. First, the Court and the school assume that if a race is underrepresented in the educational setting, then individuals within that race with withhold their opinions. This assumption is flawed in that it is based on the reasoning that individuals will segregate into their own racial groups, and thus will only be comfortable expressing their opinion to those of their own race. To generalize the acts of an individual and to argue that an individual needs to have racial affirmation to express his/her own opinion is itself a racist argument. It also brings up another inherent flaw in that the Court implies that members of the same racial group have similar opinions about all issues. This sweeping generalization is the backbone of the “critical mass” argument and is obviously flawed logically and racially.

We need, as a society, to stop focusing on racial groupings and stereotypes, and focus on the individual. When a prospective student applies to a college, he/she is not applying as a group, rather as an individual. Why should we treat students as members of their racial group if they are applying to the college as an individual? This issue goes beyond the manmade rules of the constitution and at its core is a matter of morality and racism. If we look at the defense of affirmative action from a moral scope, we find several faults as well. By assuming that people of different races in an educational have different opinions and will create a “whole” that is more diverse, we only promote the idea that people of different races are inherently different. The current affirmative action policy, while intended to include “students from groups which have been historically discriminated against,” only promotes the same racist thinking found in the same American history the school is trying to “fix”. How can we create a society in which all races are equal if the government and schools make distinctions between races and treat some races differently? In order for our society to reach true racial equality, we must be a society that is blind to skin color.

Proponents of affirmative action in college admissions say that schools need a “critical mass” of each race in order for that race’s opinion to be represented. But doesn’t this just promote segregation? If an individual cannot express an opinion without peers of his/her own race, then wouldn’t all of the educational setting be comprised of strict racial groups? Our ultimate goal of racial equality in the educational setting should not be to have “racial opinions” represented, but to have the opinions of individuals represented regardless of race. A true diverse educational setting would be one that has a singular body comprised of individuals with diverse opinions. The current standard promotes an educational setting comprised of segregated groups with similar opinions. Our goal should be a society that does not make these unethical racial distinctions and treats everyone as an individual, not a skin color. The practice of creating a “critical mass” is based on immoral racist ideals that only perpetuate the problem it is intended to fix.

Perhaps the most prominent argument against the ethics of affirmative action is the argument pertaining to the daunting term, “fairness”. The current policies allow schools to put preferences for their allocation their educational resources to some racial groups over others. More bluntly, schools can lower admissions standards for racial minorities and raise the standards for whites. It is argued that minority races have been disadvantaged in the past and thus deserve a “boost” over whites to get into college. This reasoning is outdated and overtly racist. The question should be raised as to whether or not a lower standard in admissions for minorities is a “boost”. Help to overcome a disadvantage should not come in the form of a lower standard. This policy only harms. If the goal is to put every race on the same level of advantage in the educational setting, then policies should be enacted to help the disadvantaged become advantaged. Instead, the current policy discriminates and lowers standards to minority races at the expense of whites, for the standards of whites must be raised to counter the policy. This fundamentally is creating a disadvantage for one race while giving advances to others, the inherent principle behind all of racism. Affirmative action immorally gives preference for opportunity to students based on the color of their skin, contradicting what our country has established as fair and ethical.

Many people were not satisfied with the ruling in Grutter v. Bollinger just a decade ago and have since challenged its ruling. A new case has been brought to the Supreme Court, Fisher v. University of Texas, which challenges the same unconstitutional and immoral practices allowed by the Court in Grutter v. Bollinger. If the Court were to overturn its decision from a decade ago, our society would make another stride toward creating a racially equal society. Barriers between races could be torn down, people would not be defined in any way by the color of their skin, and true diversity in the educational setting can be achieved.

The practice of affirmative action judges individuals based on the color of their skin and the stereotypes that are associated with racial groups. The overturning of such policies would judge people based on their individual actions, values, morals, achievements, and cultural perspective without assumptions about the person based on the color of their skin. Martin Luther King Jr. said “I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin, but by the content of their character.” This country is ready to take skin color out of the college admissions process and transform racial stereotypes to individual beliefs, discrimination into equality, and dreams into reality.