Is it over for affirmative action?
The Trump administration’s Justice Department is hiring lawyers to look into a civil rights complaint filed by 64 Asian-American groups back in 2015. The department will investigate and perhaps sue colleges and universities that engage in intentional race-based discrimination in admissions.
You don’t need a telescope to see where this is going. The project is a hothouse to grow test cases, at least one of which will eventually reach the U.S. Supreme Court.
It has always been fiercely disputed whether affirmative action — the practice of achieving diversity by considering race and gender in admissions, hiring and contracting — was constitutional. The Fourteenth Amendment states, “No state shall … deny to any person within its jurisdiction the equal protection of the laws.”
But it’s a fact of U.S. history that the Constitution has never actually been amended to ban discrimination on the basis of race. The framers of the Fourteenth Amendment, and the state legislatures that ratified it in 1868, were very vocal in their desire to preserve segregation and other racially discriminatory laws and practices.
It was during the 20th century, after everyone who debated and voted on the Fourteenth Amendment was safely dead, that the U.S. Supreme Court began to apply the Equal Protection Clause to get rid of the discriminatory laws and practices which the authors of the Fourteenth Amendment had left in place.
This created the legal ground for affirmative action policies to take root. On one hand, discrimination on the basis of race is unconstitutional. On the other hand, nothing in the Constitution actually says that.
The Supreme Court’s first decision on affirmative action was in 1978: Regents of the University of California v. Bakke. The justices divided 5-4, and the majority divided on its reasoning. The court held that affirmative action was permissible but rigid quotas were not.
In Grutter v. Bollinger in 2003, the justices divided 5-4 again, with the majority upholding the use of race in student admissions at the University of Michigan Law School. Justice Sandra Day O’Connor wrote that the court expected “all race-conscious admissions programs” to have “a termination point” and hoped it would be within 25 years.
Affirmative action could meet its end in a pending lawsuit filed by Asian-American students against Harvard University. The lawsuit alleges that Harvard effectively set a quota for the number of Asians who will be admitted to the elite school’s undergraduate program.
College degrees took on an importance beyond their educational value as a result of another Supreme Court decision, Griggs v. Duke Power Co., in 1971. Duke had a policy of requiring applicants for any job to have a high school diploma or pass an aptitude test. The court ruled that the requirement had a discriminatory effect, a “disparate impact” on minority groups, and was therefore illegal under the 1964 Civil Rights Act.
That decision effectively ended the use of aptitude and IQ tests in hiring. The college degree became the primary screening tool for employment.
This is how we got to the point where toddlers are pressured to do well on tests to get on track for admission to a top university, and parents suffer debilitating anxiety over grade-school report cards.
One day, someone will file a lawsuit arguing that the use of a college degree as a screening tool in hiring has a disparate impact and is discriminatory.
But by then, robots will have replaced us all.
Susan Shelley is a columnist for the Southern California News Group. Reach her at Susan@SusanShelley.com.