Prop 2: Affirmative Action in College Admissions

[DJBruce]

So five years ago Michigan passed Proposition 2, 58% to 42%, which was an iniative that amended Michigan's constitution to include among other things,

 

• The University of Michigan, Michigan State University, Wayne State University, and any other public college or university, community college, or school district shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.
• The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.

 

http://en.wikipedia.org/wiki/Michigan_Civil_Rights_Initiative

 

Recently, however, a federal appeals court found Proposition 2 unconstitutional believing that it violated the equal protection clause of the 14th amendment.

 

The court took issue with the manner in which the ban was enacted. Because the law amended the state's constitution, only another statewide vote could change it. This created a significant obstacle for minorities who objected to the law to overcome, ruled Judges R. Guy Cole Jr. and Martha Craig Daughtrey."Proposal 2 reorders the political process in Michigan to place special burdens on minority interests," they said.

 

The lone dissenting judge, Julia Smith Gibbons, said that Michigan's university system was not structured as part of the "political process" and that faculty members were insulated from political influence.

 

"The Michigan voters have therefore not restructured the political process in their state by amending their state constitution; they have merely employed it," Gibbons wrote in her partial dissent.

 

http://articles.latimes.com/2011/jul/01/nation/la-na-michigan-ban-20110702

 

So this raises two questions in my mind:

 

Should race, gender, ethnicity, etc be used in college admissions?

Is Proposition 2 constitutional, and should a state be able to outlaw "affirmative action" policies?

[Marat]

I'm not entirely clear on the issue in this case. Since a statewide election changed the state constitution to make affirmative action illegal, how was it that another statewide election to change the constitution back to its former condition would be a violation of the 14th Amendment's equal protection guarantee? It seems that the minorities wanting to re-amend the state constitution would only have to go through the same process as the whole state's electors faced in the first place to amend it. It seems that the amendment effecting the denial of affirmative action also somehow made it more difficult to re-amend the constitution to change it back to permitting affirmative action. If that is so, then it seems not a facial but certainly a substantive violation of the 14th Amendment.

 

Affirmative action per se is ridiculous, since it seeks to address the negative effects of racism against one group by racism against another group. Affirmative action programs represent yet another illegitimate use of group stereotype reasoning to the disadvantage of a race, since they assume that all White males presently in the country somehow benefited from the history of discrimination which in many cases ended before they were born. It may even be doubted that the effects of historical discrimination really are necessarily passed on to later generations, since many victims of very recent discrimination, such as the Jews, Asians, South Asians, Italians, and Irish seem to do quite well, and yet some of them are marked a legal victims of affirmative action despite their recent historical experience of discrimination. What is the excuse for that? Can mere administrative convenience in applying an affirmative action policy justify the violation of equality rights?

 

A better way to address any lingering effects from past discrimination would be to benefit those harmed by money from the general tax funds, since in this solution there is at least no use of racial discrimination, and the burden is not specifically and heavily imposed on people whose only connection with the original beneficiaries of discrimination is the color of their skin.

[jackson33]

Should race, gender, ethnicity, etc be used in college admissions?

Is Proposition 2 constitutional, and should a state be able to outlaw [/Quote]

 

Bruce; As I recall, Prop 2 Michigan challenged "affirmative action", which in short lowered requirements for minorities to allow proportionate admittance to minority population percentages. Somewhere along the line I thought this was found legal or whites could not be denied admittance or requirements lowered for others. While this was all based on entrance test scores or High School performance, other requirements were not effected, such as scholarships.

 

The Federal Appeals court found the proposition violated the States Constitution, which can be corrected with another vote....

 

The court took issue with the manner in which the ban was enacted. Because the law amended the state's constitution, only another statewide vote could change it. This created a significant obstacle for minorities who objected to the law to overcome, ruled Judges R. Guy Cole Jr. and Martha Craig Daughtrey.[/Quote]

 

http://articles.latimes.com/2011/jul/01/nation/la-na-michigan-ban-20110702

 

Opinion; I do question weather entrance exams can be formulated to a specific culture or even political ideologies of those applying, preferring high school performance and OTHER activities being used to determine qualification, but then I think a college degree for everyone is a total waste of time and money...another thread...

[DJBruce]

The Federal Appeals court found the proposition violated the States Constitution, which can be corrected with another vote....

 

I believe not. The court found Proposition 2 in conflict with the equal protection clause of the US Constitution.

 

Our task

is to determine whether Proposal 2 is constitutional under the Equal Protection Clause

of the Fourteenth Amendment to the United States Constitution. Fortunately, the slate

is not blank. The Supreme Court has twice held that equal protection does not permit

the kind of political restructuring that Proposal 2 effected. See Washington v. Seattle

Sch. Dist. No. 1, 458 U.S. 457 (1982); Hunter v. Erickson, 393 U.S. 385 (1969).

Applying Hunter and Seattle, we find that Proposal 2 unconstitutionally alters

Michigan’s political structure by impermissibly burdening racial minorities.

 

 

Here is the court's opinion.

[swansont]

So this raises two questions in my mind:

 

Should race, gender, ethnicity, etc be used in college admissions?

Is Proposition 2 constitutional, and should a state be able to outlaw "affirmative action" policies?

It looks like the court is saying that equal protection includes the majority not being empowered to create a process that ensures the majority can perpetuate an advantage, where those classes included in the 14th amendment are concerned. So removing the ability to apply a counter-bias elsewhere perpetuates and reinforces the existing bias that precedes it. The question then is does such bias exist. Is anyone going to say no to that?

 

In the question of college admissions, the issue is whether diversity has a benefit and should be a goal. IMO the answer to that is yes. The educational system is not inherently structured such that affirmative action means admitting unqualified people to colleges. As long as the admitted people are at least as well qualified as, say, that prized football/basketball recruit, I don't see a problem.

[CharonY]

In the question of college admissions, the issue is whether diversity has a benefit and should be a goal. IMO the answer to that is yes. The educational system is not inherently structured such that affirmative action means admitting unqualified people to colleges. As long as the admitted people are at least as well qualified as, say, that prized football/basketball recruit, I don't see a problem.

 

 

Absolutely agree with that. Initially I found the obsession with diversity a bit strange, when I came to the US. I However, I came to realize that the exposure of students to members of different cultural background vastly enriches their perspectives. Some of the most important lessons in college can be learned outside the curriculum.

 

Eh, actually agree completely with swansont's interpretation, too. Which makes this reply rather redundant.

Edited July 5, 2011 by CharonY

[Marat]

The claim that affirmative action was to promote diversity was an innovation which arrived late in the history of affirmative action, after the Bakke decision in 1978 put limits on racial preferences in college admissions. The Court there said that since criteria other than academic excellence had long had an influence on admission decisions, then a university could reasonably use the promotion of diversity in its class as a reason to admit minorities preferentially, so suddenly affirmative action -- which had existed in one form or another since the mid-1960s -- became all about diversity, which had never been its motivation before. Earlier it had just frankly been to promote advantages for historically disadvantaged groups, at the expense of those who had the same skin color as the people who used to be advantaged by discrimination before they were born.

 

But the diversity claim is palpably absurd, since it is nothing but stereotypic, racist thinking to imagine that the race differences guarantee that the people of each race think in a distinct way. In fact, there is nothing less diverse than a high-achieving, academic nerd from a minority group sitting next to a high-achieving, academic nerd from a non-minority group in a freshman class at an elite university. If universities really wanted diversity, they could achieve 100 times as much diversity by admitting one student from Outer Mongolia as by admitting one black from a private school in Connecticut.

 

One problem with affirmative action is that it assumes that if a group is now disadvantaged as a statistical whole, then each of its members must be a victim of discrimination. But there are countless reasons why groups have the characteristics they do, and most have nothing to do with discrimination. I have seen a statistic that 60% of psychiatrists in the U.S. are Jewish, just as 60% of the class at Harvard is Jewish. This group has suffered discrimination, but I'm sure that discrimination did not make them psychiatrists and Harvard students.

 

Can the effects of discrimination really propagate themselves through history so that they must now be compensated? Why are so many groups very recently victimized by discrimination (e.g., the Nisei who were interned during World War II) now spectacularly successful? If you see how quickly a single generation can squander an inherited fortune, you can also see that illegitimate advantages acquired by a group from previous discrimination also don't have much staying power without each new generation re-creating them by its own honest effort.

 

Why was affirmative action not applied to people who had themselves benefited from it, but only to those who had the same skin color as they did and who were just now applying to advance through the social system? Thus when affirmative aciton first got underway in the 1960s, White tenured professors who had demonstrably benefited from affirmative action by being insulated from minority and female competition sat comfortably in their offices collecting their fat salaries, making politically correct speeches about how Whites should pay for the history of discrimination, but by 'Whites' they just happened to mean only those 18-year-old Whites who were applying to their universities, and not themselves.

 

And what about the Whites who were descended from indentured servants, or exploited factory workers, or whose ancestors had been seized and made slaves of Blacks by the Barbary Pirates, who took 10% as many Whites into slavery as the Whites took into slavery from Africa? What about Whites from the wrong ethnic group in the former Yugoslavia who emigrated to the U.S. after the wars there in the 1990s, and who now have to pay for a history of discrimination they never participated in, even though 'discrimination' in their own lived-through reality meant discrimination against their own ethnicity? These Whites are also now paying for a discrimination they had nothing to do with. Given that equality is the foundational right of all liberties, a government program cannot sweep a vast group of people up into a program which denies their human equality in the name of some social good and make no attempt to establish who does not really belong in the group.

 

Meanwhile, the vast tobacco fortunes which were accumulated from slave plantations are untouched, because that would mean harming rich people for affirmative action, rather than just the poor and the middle class who rely on the fair administration of the merit system to advance.

 

While it is true that criteria other than academic ability have always been used in college admissions, the cultural expectation is that the essential determinant of university admission should be academic, and since race preferences violate that, they shouldn't rely on the historically minimal impact of non-academic criteria as justification.

 

Generally, the entire logic of desert in the West assumes that each individual is responsible for himself and his own present abilities. The prize thus goes to the person fastest in the race on the day, and no adjustments are made to the result according to who had a virus most recently, who naturally has the higher hemoglobin level, who had the better trainer, who had the more spare time, or who has longer legs. Affirmative action violates this foundational notion of just desert on which our society operates, and no law can claim to be just if it denies a constitutionally-entrenched equality right by using a criterion of fairness which itself denies our most basic notion of fairness.

[swansont]

In fact, there is nothing less diverse than a high-achieving, academic nerd from a minority group sitting next to a high-achieving, academic nerd from a non-minority group in a freshman class at an elite university. If universities really wanted diversity, they could achieve 100 times as much diversity by admitting one student from Outer Mongolia as by admitting one black from a private school in Connecticut.

 

The proposition only addressed public schools, so this is moot. The court decision was about prop 2, and the court only gets to decide the question brought before it, namely was it constitutional. Prior SCOTUS decisions regarding affirmative action are precedent; you have to take them as given.

[Marat]

Yeah, but the OP also concluded with the additional question, "Should race, gender, ethnicity, etc. be used in college admissions?" so I was replying to that more general issue.

[swansont]

But the history of affirmative action, or the notion that it is limited to historical discrimination is irrelevant. Current bias is enough, and when the diversity argument arose doesn't negate its validity.

 

Generally, the entire logic of desert in the West assumes that each individual is responsible for himself and his own present abilities. The prize thus goes to the person fastest in the race on the day, and no adjustments are made to the result according to who had a virus most recently, who naturally has the higher hemoglobin level, who had the better trainer, who had the more spare time, or who has longer legs. Affirmative action violates this foundational notion of just desert on which our society operates, and no law can claim to be just if it denies a constitutionally-entrenched equality right by using a criterion of fairness which itself denies our most basic notion of fairness.

 

In athletic competition there is also the notion of a level playing field. For a long time great pains were taken to ensure Olympic athletes were amateurs. Professional sports draft players in reverse order of accomplishment, and revenue is often shared. Further, the assumption that an individual is responsible from himself and his own present abilities is a bad assumption to this situation. If you were to e.g. systematically deny an athlete proper nutrition, you aren't judging them on natural ability. Just as a test score might not be a fair assessment of one's ability if the test, or education leading up to a test, is biased. It's important to note also that acceptance to college is not a measure of past accomplishment — that's your high school diploma — they are used as predictors of future performance, because college acceptance is tied to the chance the person will excel in college.

[bob000555]

It looks like the court is saying that equal protection includes the majority not being empowered to create a process that ensures the majority can perpetuate an advantage, where those classes included in the 14th amendment are concerned. So removing the ability to apply a counter-bias elsewhere perpetuates and reinforces the existing bias that precedes it. The question then is does such bias exist. Is anyone going to say no to that?

While that's an interesting and somewhat convincing argument, its not the argument the court used.

 

The court did not say that "perpetuating an advantage" violates the Fourteenth Amendment, they said

 

loquitur[/i] U.S Court of Appeals for the Sixth Circuit']

Applying Hunter and Seattle, we find that Proposal 2 unconstitutionally alters Michigan’s political structure by impermissibly burdening racial minorities.

 

"Hunter" refers to Hunter v. Erickson, SCOTUS, 1969. The citizens of Akron, Ohio had modified the city charter to make it so that, "any ordinance regulating real estate 'on the basis of race, color, religion, national origin or ancestry,'" required the approval, not only of the city council, but of the majority of the electorate. SCOTUS found, quite rightly, that this amendment to the city charter “place[d] special burden on racial minorities within the governmental process” and therefore violated the Fourteenth Amendment's equal-protection clause.

 

"Seattle" refers to Washington v. Seattle School District Number 1, SCOTUS, 1982. Seattle School District Number 1 had enacted a plan to integrate its schools by forced busing. The voters of Washington responded by enacting an initiative (Initiative 350) that said, “no school board . . . shall directly or indirectly require any student to attend a school other than the school which is geographically nearest or next nearest the student’s place of residence." But, school boards could enact policy to send a student to a far away school "if he requires special educational programs, or if the nearest or next nearest school is overcrowded or unsafe, or if it lacks necessary physical facilities." SCOTUS cited the precedent set by Hunter and decided that Initiative 350 violated the Fourteenth Amendment because "non-neutral allocations of power “place special burdens on racial minorities within the governmental process, thereby making it more difficult for certain racial and religious minorities than for other members of the community to achieve legislation that is in their interest.”

 

In this case, The Sixth Circuit has decided that Prop 2 is in the vein of Initiative 350 and the aforementioned amendment to the Akron city charter and therefore applied the precedent of Hunter v. Erickson and Washington v. Seattle School District Number 1 to say that Prop 2 somehow creates an unconstitutional burden for minorities in the political arena.

 

Personally, I see several problems with this line of reasoning. First, both Initiative 350 and the amendment to the Akron City charter clearly effected the political arena. They were meta-laws, laws about laws (or, more accurately, what could become law), namely, the Akron amendment decided what could and could not become city law and Initiative 350 decided what could and could not become Board-of-Education policy. The point being that a meta-law has the power to deny the minority fora to effect change. Apparently, the offending portions of Prop 2 are

The University of Michigan, Michigan State University, Wayne State University, and any other public college or university, community college, or school district shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.

and

The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.

I fail to see how these are meta-law falling under the scope of Hunter and Seattle, any more than any other law that forbids discrimination.

 

The second hole in Judge Cole's logic is even more glaring. He himself points out that the logic behind The Supreme Court's decisions in Hunter and Seattle was

loquitur[/i] U.S Court of Appeals for the Sixth Circuit']

While “laws structuring political institutions or allocating political power according to neutral principles” are not subject to challenges under the Fourteenth Amendment, “a different analysis is required when the State allocates governmental power nonneutrally...”

Therefore, before we even get to the step of applying the Hunter/Seattle test for violation of the Fourteenth Amendment, we must answer the question of weather or not Prop 2 was neutral or non-neutral in its modification of political institutions(That is if, indeed, it did modify any political institution; as Judge Gibbons argued in his dissenting opinion, universities are not political institutions.) As the proposition expressly forbids the affected universities from either discriminating against or for anybody, I fail to see anything non-neutral about it. It would appear that the court applied a precedent intend for political, non-neutral laws to a law that was fundamentally non-political and fundamentally neutral.

 

As you can see, there are some real questions about the application of the Hunter/Seattle precedent to this case. And, as I am bob000555, you should not be surprised to learn that I have some inside information on the matter. Suffice it to say that I would not be at all surprised if the Sixth Circuit decides to rehear the case en banc.

Edited July 7, 2011 by bob000555

[swansont]

While that's an interesting and somewhat convincing argument, its not the argument the court used.

 

The court did not say that "perpetuating an advantage" violates the Fourteenth Amendment, they said

 

I think it's a reasonable summary. They said this (emphasis added):

 

Of course, the Constitution does not protect minorities from political defeat: Politics necessarily produces winners and losers. We must therefore have some way to differentiate between the constitutional and the impermissible. And Hunter and Seattle do just that. They provide the benchmark for when the majority has not only won, but also rigged the game to reproduce its success indefinitely.

 

I think "perpetuating an advantage" is an equivalent to "rigged the game to reproduce its success indefinitely" but IANAL. YMMV

[bob000555]

Suffice it to say that I would not be at all surprised if the Sixth Circuit decides to rehear the case en banc.

Just to point out, I was right. The case will be reheard en banc and most experts believe that it will be reversed for some of the reasons I pointed out in my earlier post.

http://turtletalk.files.wordpress.com/2011/09/08-1387_documents.pdf

Edited April 12, 2012 by bob000555

[Anders Hoveland]

Hitler also employed affirmative action for the German people. Jews were vastly overrepresented in the german universities compared to their small numbers. So the Nazis set a limit so that the Jews could not be overrepresented by more than a factor of 1.5. In other words, if Germany only had 1000 people, 900 of those people germans and 100 of them jews, and if there were only 100 spaces in german universities, then no more than 15 jews would be admitted to the universities.

 

This seems fair to me. Obviously jews were vastly overrepresented, and corrective action needed to be taken.

 

 

Despite being only 2 to 3% of the population in the USA, Jews constititute about 24% of Ivy League undergraduates.

Between a quarter to a third of Harvard students identify themselves as Jewish.

So it would seem that non-jews are significantly underrepresented. Perhaps corrective action needs to be taken again?

 

 

affirmative action = racism against asians

 

Let us take a look at what "affirmative" action means for asian Americans:

 

If all other credentials are equal, Asian-Americans need to score 270 points higher than Hispanics, and 450 points above African-Americans out of a maximum 1600 on the math and reading SAT to have the same chance of admission to a private college, according to “No Longer Separate, Not Yet Equal,” a 2009 book co-written by Princeton sociologist Thomas Espenshade.

 

Budget-strapped state schools such as the University of California at San Diego are reducing enrollment of Asian-Americans to make room for international students from China and elsewhere who pay almost twice the tuition of in-state residents, Bloomberg News reported December 28, 2002. Why is the enrollment of Asian-Americans being reduced? Because there would be "too many" Asians otherwise, and that would exceed the university's allocated racial quotas!

 

12/16/11 New York Post:

Hiding their race

By Rich Lowry

"To check or not to check the Asian box? That’s the choice faced by Asian-American students applying to what are supposed to be the most tolerant places on Earth: the nation’s colleges"

 

Ward Connerly, a former University of California regent, explained to the newspaper

The Sacramento Bee

about what Asians faced trying to get accepted into the state's university system:

“In an unguarded moment, [a fellow regent] told me that unless the university took steps to ‘guide’ admissions decisions, UC would be

dominated by Asians

. When I asked, ‘What would be wrong with that?’ I got an answer that speaks volumes about the underlying philosophy at many universities with regard to Asian enrollment. The UC administrator told me that

Asians are ‘too dull – they study, study, study

.’ He then said, ‘If you ever say I said this, I will have to deny it.’ I won’t betray the individual’s anonymity because to do so would put him in a world of trouble."