Two UCLA law professors say affirmative action is
constitutional, contradicting President Bush’s statement last
week that he considers the University of Michigan’s
race-conscious admissions policies to be unconstitutional.
Bush and other affirmative action opponents claim
Michigan’s policy gives blacks and Latinos racial preferences
in violation of the 14th Amendment of the U.S. Constitution. The
amendment provides equal protection for all citizens under all
state and federal laws, including university admissions
policies.
Supporters claim the university’s policy follows the
precedent of Bakke v. UC Board of Regents, and is constitutional if
the Supreme Court follows its 1978 ruling.
In a 5-4 decision the Court declared quotas ““ setting
aside a portion of the admitted class for people of a certain race
““ unconstitutional under the 14th amendment.
But forms of affirmative action that did not involve quotas were
deemed constitutional under the equal protection clause.
“What the Michigan law school is doing is completely
within the bounds of what the court said is constitutional in
Bakke,” said Laura Gomez, a UCLA law professor specializing
in Chicano studies and race relations.
The Supreme Court operates under a procedure of following
precedents to interpret the Constitution.
But while the Bakke ruling is the most recent, this court could
rule differently.
“These are questions that are not pre-determined. They are
not written in the Constitution,” said Sheryl Harris, a UCLA
law professor specializing in critical race theory.
Three white students are suing the University of Michigan,
alleging less qualified minority applicants were accepted to the
university’s undergraduate program or law school for the same
term the three were rejected.
The Supreme Court will hear oral arguments on April 1, and its
ruling is expected to set a new national standard on whether race
can be considered in university admissions.
In his criticism, Bush focused on the university’s points
system, used to compare applicants. Underrepresented minority
applicants gain a 20-point bonus on a 150-point scale used for
undergraduates.
On Bush’s request, the Department of Justice filed an
amicus curiae, a “friend of the court brief,” claiming
the points policy leads to a type of quota.
“The university has failed to employ race-neutral
alternatives,” according to the brief, “and has instead
resorted to impermissible racial quotas or their
equivalent.”
Amicus curiae arguments are filed by third parties to advise the
court, but the court does not necessarily take them into
consideration when making its decision.
University of California Regent Ward Connerly, who led the
anti-affirmative action campaign in California, submitted a similar
brief with the court.
In the brief he mentioned his experience as a regent, and said
in his experience the goal of promoting diversity in admissions
resulted in racial quotas.
Promoting diversity is considered one of the main goals of
affirmative action.
Connerly led the movement for passing Proposition 209, which
banned the consideration of race, gender and ethnicity in
admissions and hiring decisions throughout the state of
California.
Gomez said affirmative action opponents are misinterpreting
data, and that the University of Michigan is not using a quota
system.
“The percentage of minority students has hovered at
between 12-17 percent. They say that amounts to a quota,”
Gomez said.
The court is expected to announce a decision in the middle of
the summer.