The Constitutionality of Affirmative Action

The recent lawsuit against Harvard University, in which a group of Asian American students sued the university for discriminating against Asians in their attempt to diversify the campus, has raised questions across the country about the virtues as well as constitutionality of Affirmative Action. The plaintiffs, Asian-American students denied admission to the prestigious university, argued that there was bias in the admissions proceedings against Asian Americans based on the fact that Asian Americans were scoring consistently lower on the personal ratings than their white, black, and latinx counterparts. To remedy the bias, the plaintiffs called for a race-blind admissions process to replace current efforts to diversify the student body. Although the trial ended in November, we have yet to hear the judge’s decision on the case.[1]

The decision in the Harvard case is likely to be influenced by the 2013 landmark case on affirmative action, Fisher v. University of Texas at Austin. In this case, the plaintiff, a white student who was denied admission to the university, argued that race had been the determining factor in her admissions process, as there were other “less qualified” minority students admitted in her year.[2] Although the court sided with the plaintiff in a seven to one ruling, only Justice Ginsburg dissenting, the decision did not deem all forms of affirmative action illegal. 

There are two competing schools of thought about the merits and constitutionality of affirmative action. Justice Sotomayor has said that affirmative action gave her access she otherwise would not have had to institutions like Princeton and Yale and is thus largely responsible for her place on the Supreme Court.[3] Justice Thomas on the other hand has said that affirmative action actually had the opposite effect on his experience in higher education and in his career as people often doubted his capabilities out of skepticism that he had not earned his place at Yale.[4]

Justice Thomas does not only view the practical effects of affirmative action unfavorably but he also believes it is almost always a violation of the Constitution. Justices Scalia and Thomas argue that it is really a question about the interpretation of the Equal Protection Clause which has prohibited all forms of discrimination on the basis of race. The Equal Protection Clause, he argues along with the majority view in the Fisher case, is so important that any affirmative action effort, or other program involving discrimination on the basis of race must fit several criteria. First and foremost, we must assume that all of these cases are “inherently suspect” that is we assume that they should all undergo judicial review. Secondly, they must be subject to “rigid scrutiny” to determine whether the efforts are “narrowly tailored” to some “compelling governmental interest,” which in affirmative action cases often means a university must treat diversity as a means rather than an end. Lastly, in order for any sort of institutional discrimination on the basis of race to be considered constitutional, it must be “unquestionably legitimate” in practice.[5]

Thomas, in his opinion in another landmark case Grutter v. Bollinger, insisted that “the constitution abhors classifications based on race [because] every time the government places citizens on racial registers and makes race relevant to the provisions of burdens or benefits, it demeans us all.”[6] His views are on the more extreme end of the spectrum in that he believes that time has proven all forms of discrimination on basis of race, including now affirmative action, to be both harmful and unconstitutional. Nevertheless, his opinion on this topic is also notably consistent. He does not think that the practical consequences of racial discrimination determine its constitutionality. Racial quotas, segregation efforts, integration efforts, and affirmative action alike are all unconstitutional, according to Thomas, despite arguments that affirmative action is “helpful for minorities.” To support his argument he referenced cases such as Wygant[7] and Palmore,[8] both of which resulted in rulings that disallowed forms of racial discrimination even when there was the possibility of social benefit for the parties involved.

 I would disagree with Thomas on this point. I do completely agree that discrimination on the basis of race is “inherently suspect,” and that no imagined benefit to minority groups, such as those proposed by white segregationists, can justify that particular sort of discrimination. It was wrong to discriminate on the basis of race in Korematsu, it was wrong in Plessy, and it was wrong in Palmore. However, I believe that in most cases of affirmative action, the actions taken by schools to further their missions are a completely legitimate form of racial discrimination because they constitute an expansion rather than a contraction of personal liberties. This distinction is significant for more liberal judges such as Ginsburg and Sotomayor. Unlike segregation and forcible displacement for the supposed sake of the minority group, affirmative action is an expansion of freedom, not a contraction. In other words, these two types of discrimination are not constitutional equivalents.

 The second reason why affirmative action is generally constitutional is that this type of discrimination on the basis of race is actually honoring the equal protection clause rather than skirting it. It is discrimination for the purpose of providing people equal opportunity in a society where they are simply not equally protected under the law. Thomas has rebutted this claim by arguing that we have progressed to a degree where our society can be race-blind in order to provide equal opportunity. Chief Justice Roberts once said in the Parents Involved case that “the only way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”[9] However, both Roberts’ and Thomas’ views on this issue are too simplistic. Both affirmative action and racial blindness are discrimination on the basis of race. If you turn a blind eye to the rich cultural and racial history of an applicant rather than taking into account a racial history that has shaped who the applicant has become and how she has performed, you are allowing systemized racism, which undoubtedly exists today, to continue to dictate their futures. It is passive discrimination on the basis of race by another name. Because of the state of the country there exists no option where the institution does not discriminate on the basis of race. 

Thomas and Scalia have made compelling arguments as to why discrimination on the basis of race should never go unchecked in this country. Yet, I am not convinced that affirmative action efforts in institutions of higher education are doing a disservice to the equal protection clause. In truth, affirmative action is one of the only “unquestionably legitimate” forms of racial discrimination I know.

[1] NPR “Harvard Discrimination Trial Ends but Lawsuit is Far from Over”

[2] Fisher v. UT Austin

[3] Barnes, Robert “Justice Sotomayor Defends Affirmative Action”

[4] Blake, Aaron “Clarence Thomas Compares Affirmative Action to Segregation”

[5] Fisher v. UT Austin

[6] Grutter v. Bollinger

[7] Wygant v. Jackson Board of Education

[8] Palmore v. Sidoti

[9] Parents Involved v. Seattle School District