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By Esin Onart
How is it possible to justify a policy granting preference to certain individuals based on race? Lino A. Graglia, a University of Texas law professor, answered that it is impossible to justify such a policy today, either legally or morally. Graglia expressed this opinion during a debate about affirmative action with Portland’s Chief Deputy City Attorney, Madelyn Wessel. The Northwestern School of Law of Lewis & Clark College chapters of the Federalist Society, American Civil Liberties Union, and Minority Law Student Association sponsored the event, which took place on Thursday, October 15.
Affirmative action programs, according to Graglia, violate the Constitution's Equal Protection Clause and the Civil Rights Act of 1964 in granting preference to groups of individuals based on race while disfavoring others. This is impermissible because Brown v. Board of Education and the Civil Rights Act established that the law tolerates no racial discrimination, said the Texas law professor. Graglia’s views opposing affirmative action, especially programs in university admissions, recently gained him nationwide recognition. His work includes writings on constitutional law, race discrimination, and affirmative action. He is also the author of Disaster by Decree: The Supreme Court Decisions on Race and the Schools (Cornell 1976).
Madelyn Wessel countered that the law no longer allows government to implement rigid programs, such as quotas, based on race. The Supreme Court’s 1978 decision in Regents of the University of California v. Bakke limited the ability of universities to use race as a basis for decisions or to use quotas to maintain student body composition. Wessel said the Court’s decision ensures that government entities are thoughtful and careful in implementing affirmative action programs, which look only to qualified candidates without discriminating against white men. An expert on constitutional law and affirmative action, Wessel has spoken at state and national conferences about how governments can institute successful affirmative action that comply with the Equal Protection Clause standards of the Supreme Court. She also designed the Oregon Regional Disparity Study in order to examine Oregon’s public contracting affirmative action programs.
According to studies such as the ones Wessel conducted, minorities continue to lack access to resources such as education, medical care, and employment. Wessel argued that this evidence mandates the implementation of affirmative action programs to create a “level playing field.” The playing field is not level for whites and minorities because, not so long ago, explicit codes denied minorities opportunities, such as the right to own property. We have a special right to deal with the aftermath of these laws, which benefited whites, said Wessel.
Graglia disagreed that affirmative action programs compensate for such past injustices. If affirmative action programs sought to remedy disadvantage, said Graglia, disadvantage would be the critical criterion rather than race. Affirmative action does not help kids of the underclass, Graglia argued. For example, universities with affirmative action programs admit a disproportionate amount of affluent African American students, whose SAT scores are higher than those of poor African Americans. Graglia argued that such programs admit affluent minorities at the expense of other disadvantaged students.
In response, Wessel stressed that affirmative action programs work and eliminating them would mean giving into a system that still fosters a preference for white men. Affirmative action does not remedy all racial and economic disparities, said Wessel, but it has a significant impact on the quality of life of minority groups. A newly released book called The Shape of the River indicates that African Americans and other minorities who receive a higher education in top American schools return to their communities and give back by serving its people.
One student in the audience asked Professor Graglia, “If not through affirmative action, how do we integrate society?” Graglia answered that he did not necessarily have the remedy, but that use of racial preferences only covered up gaps in academic achievement between minority and white students. Affirmative action programs send the message that African Americans are exempt from ordinary admission criteria said Graglia. If we allow this, why can’t African Americans be exempt from other societal requirements, he asked.
The debate about affirmative action was especially timely in light of recent state actions dismantling affirmative action programs. California no longer uses race as a factor in admission to state universities and colleges. In 1996, California voters also passed an initiative prohibiting the consideration of race, ethnicity, and gender in all government programs. Washington citizens will vote on a similar anti-affirmative ballot measure next month.