In the first piece of this column, I discussed the origins and development of two diverging notions of affirmative action: “soft” affirmative action, which avoids explicit distinctions along racial lines, and “hard” affirmative action, which calls for preferencing members of disadvantaged groups in order to increase representation and correct for past discrimination.
There is little agreement on what a “soft” or “hard” affirmative action policy constitutes. Over the past couple of decades, universities and states have experimented with various affirmative action programs. Several of these programs have faced legal challenges that have made their way to the Supreme Court, beginning most notably with Regents of the Univ. of Cal. v. Bakke. In Bakke, the UC Davis Medical School used a separate admissions process for applicants from disadvantaged groups, and reserved a fixed number of seats for such applications. In Fisher v. Texas, 75 percent of the University of Texas’s class was filled according to the Top Ten Percent Plan, which granted automatic admission to students in the top ten percent of their high schools, leaving only 25 percent of the class to be admitted using a process that factored in race. Meanwhile, Harvard — currently being sued for its admissions policies — admits its entire class through a single race-conscious program, but considers race as only one of several factors. Each of these programs, though very different from each other, are “hard” affirmative action programs in the sense that they give preference to race as a factor: Today, these are known as “race-conscious” admissions programs.
Similarly, “soft” affirmative action policies vary significantly. UC Davis, in an effort to increase minority enrollment, has begun giving preference to medical students who intend to practice in underserved areas. The University of Florida grants admission to the top 20 percent of students from every high school, but also offers free tuition to 300 first-generation students. Both these programs are “soft” only in the sense that they do not explicitly preference race; they are “race-neutral.” Even these programs, however, use first-generation status or desire to work in underserved areas as a proxy for race and minority enrollment.
The core difference between the large spectrum of “soft” and “hard,” “race-neutral” or “race-conscious” programs thus comes down to the matter of giving preferential treatment to members of a particular group. Stated this way, the contentiousness of affirmative action truly lies in the issue of group rights versus individual rights. The core questions surrounding modern affirmative action policies — whether factoring race is permissible under the Constitution and whether affirmative action should be about remediation or diversity — flow directly from this issue.
The United States has a long tradition of favoring individual rights, and the Declaration of Independence is framed in uniquely individualistic terms, holding “unalienable” the individual rights to “life, liberty and the pursuit of happiness.” The long-held national ethos of the American Dream, for example, is expressly stated in terms of individual rights. Coined by the writer James Truslow Adams in his book “Epic of America”, it described "that dream of a land in which life should be better and richer and fuller for everyone, with opportunity for each according to ability or achievement […] unrepressed by social orders which had developed for the benefit of classes rather than for the simple human being of any and every class." In other words, an individual rights approach mandates that people are to be judged on their individual merits, not on the basis of membership in a class.
In the context of affirmative action, this means that proponents of individual rights consider it morally unacceptable to disadvantage white students solely because they do not belong to a minority group. A race-conscious affirmative action policy necessarily penalizes individual white students, even if the individuals themselves were innocent of discrimination. Similarly, members of minority races benefit solely on account of their membership in a disadvantaged group, and not on any case-by-case consideration of individual merit or harm suffered. By compensating people for discrimination suffered by a group they belong to, race-conscious policies embrace a distinctly group rights approach.
If the words of the Civil Rights Act are taken at face value, they would indicate a strong resistance to a group rights approach. Title VII, for example, prohibits employers from extending “preferential treatment to any individual or to any group” on account of race. Justice Lewis F. Powell, Jr., for his part, unambiguously rejects the group rights argument in his plurality opinion in Bakke. “There is a measure of inequity,” he says, “in forcing innocent persons in respondent’s position to bear the burden of redressing grievances not of their making.”
Just a year later, in upholding private (non-governmental, unlike Bakke) race-conscious affirmative action policies in United Steelworkers v. Weber, Justice William J. Brennan Jr. took a wholly different view in his majority opinion. Embracing an anti-literal reading of the Civil Rights Act, he argued that the “spirit” and intent of the authors of the statute was to eliminate the effects of past discrimination. Quoting an earlier case, he noted, “It is a familiar rule, that a thing may be within the letter of the statute and yet not within the statute, because not within its spirit, nor within the intention of its makers.” In Brennan’s view, the Act was drafted to ameliorate the effects of discrimination faced by a group, and thus it was permissible, in order to meet that end, to adopt race-conscious policies that preferenced that group.
Powell and Brennan interpret the same statute differently to reach diametrically opposite conclusions, demonstrating their contrasting takes on the individual rights versus group rights argument. But their disagreement strikes at the heart of a more fundamental question in legal interpretation: How does one reconcile the letter of the law with the spirit of the law when the two seem to diverge? In this column’s next piece, we will examine how the Supreme Court navigates this dilemma as it attempts to determine whether there can be any legal basis for affirmative action policies.
Shreyvardhan Sharma ’22, a Crimson Editorial editor, is a Computer Science concentrator in Eliot House. His column appears on alternate Mondays.
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