Equality Is the Issue in School Admissions

Racial inequality in America’s schools is a persistent problem. Ignoring this reality, President Bush firmly contends the University of Michigan is wrong to give points to minority applicants based on their race because that process is too much like quotas.
While Michigan’s point system is different, racial quotas in public college admissions have been unconstitutional since the Supreme Court’s 1978 decision in the Alan Bakke affirmative-action case. The Bakke court also held, however, that states may consider race in evaluating applications because diversity is a legitimate goal for states to achieve in their classrooms.
States have the right to govern themselves as long as they do not violate the Constitution. If the critical issue in the affirmative-action debate is diversity, then Michigan has the right to try to achieve it or it can ignore it. Texas, California and Florida are trying to achieve diversity in their college classrooms through ”race-neutral” plans.
Michigan is trying to achieve diversity through a ”race-conscious” plan. Regardless of the plan a state chooses, it must protect each individual’s constitutional right to be treated equally by the state. Thus, the critical issue in affirmative action is not diversity, but equality. Equality is not a matter of states’ rights. Diversity and states’ rights are red herrings and detract from the critical issue of equality.
By equality, I do not mean the racial equality of white applicants, the Bakke court’s focus. For example, when the University of California, Davis Medical School set aside 16 of 100 seats for racial minority applicants, the Bakke court held that the plan unconstitutionally denied white applicants the right to compete for all 100 seats. The Bakke decision highlights how white society protects its privileged status at the expense of minorities’ equality.
Bakke and his racial minority competitors applied to Davis in 1973 and 1974. Bakke also applied to about 10 other schools in both years and was rejected by all of them. If each school had about 100 seats, then he was not competitive with 1,200 applicants who secured those places. While he had a high GPA and test scores, Davis and schools without affirmative-action plans found other applicants more attractive, including white applicants with lower scores and grades than his. But he did not challenge the right of school officials to fill those seats with other applicants. Rather, he focused only on the 16 seats set aside for racial minorities and challenged Davis officials’ efforts to achieve racial equality.
Bakke probably would have succeeded at all of the schools that rejected him, but not every applicant who can succeed in a school gets admitted to it. Selected applicants are preferred for many different reasons, including legacies, and most applicants are rejected for many different reasons.
If any applicants deserved to have their race count as a plus in admissions, it was the racial minorities in Bakke, not only because of their remarkable achievements against tremendous odds, but also because they integrated the school. Davis officials tried to remedy, in a very modest way, some of the discrimination racial minorities suffer in this country.
Racial minorities have a right to an equal education. When the Bakke court discounted this constitutional mandate for those applicants at that time in our history, it demonstrated how shallow America’s commitment is to racial equality for minorities.
Racial minorities have a right to share equally with whites all public spaces, including schools. States do not have a right to opt out of this mandate.
When we have racial equality in our classrooms, we also will have the diversity that almost everyone, including Bush, admits is valuable. Racial equality is a win-win course of (affirmative) action.
Rush is a law professor at the University of Florida.