Mark.Scarberry at PEPPERDINE.EDU
Mon Jun 26 15:58:04 PDT 2000
Suppose we take seriously the argument that affirmative action was designed
not to benefit racial minorities as racial minoriies per se (if it were,
then Asian-Americans should be beneficiaries of such policies) but rather as
*disadvantaged* racial minorities. The idea is the familiar Rawlsian
approach of reducing inequalities that flow from morally irrelevant factors.
Now that Adarand has told us that we can't use race as a proxy for
disadvantage (at least absent a compelling interest), some of us want to
find another way to reduce inequalities. Socioeconomic status or attendance
at a lousy school would seem to be permissible standards for picking out
those who are disadvantaged and who should be helped so as to reduce the
unearned inequality. By letting in the top 10% of graduates from all high
schools, we tend to equalize the unearned advantages and disadvantages of
attending a good school vs. a poor school and of being part of a financially
poor community vs. a financially well-off community.
It may be that we would not have decided to use the 10% approach had Adarand
not required us to abandon race as a proxy for disadvantage. But that is not
the same as saying that we would not have decided to use it had we always
conscientiously believed that using race as a proxy was wrong. We might have
arrived at the 10% approach much earlier.
Thus what I think we have to ask is not whether anyone previously thought a
10% approach would be a good idea, but whether, if we didn't want to use
race as a proxy for unearned disadvantage, we would have come up with
something like the 10% approach long ago.
That's not to say that I think society ought to in all cases erase unearned
advantages and disadvantages; we all have unearned advantages and
disadvantages of various types, and the government that would have enough
information and enough power to equalize all of them would be extremely
dangerous to liberty. Cf. Thomas Sowell's overstated but mostly interesting
Quest For Cosmic Justice. Further, some "unearned" advantages are unearned
only if we focus on the individual. If a person's parents lived frugally so
as to be able to send the person to college, is the opportunity to attend
college "unearned"? If the parents, at some cost to their own convenience
and freedom, give a child love and appropriate discipline, is that child's
advantage unearned? I think we have to be very careful talking about
unearned advantages. But I think we reasonably could think that the
difference between good suburban schools and poor inner city schools creates
an unearned disadvantage for inner city children.
In any case, even though I have great difficulties swallowing all of Rawls'
views, it is neither irrational nor racist to put into play his ideas to the
extent of the 10% program.
I suppose that to the extent we engage in such a program because we think
that being a member of certain racial minorities is *itself* an unearned
disadvantage, Adarand would stop us in our tracks (absent compelling
interest etc.). Thus (1) racial inferiority theories and (2) the existence
of generalized discrimination against certain minorities a la Jesse Jackson
seem to be ruled out as bases for picking out and helping those who are
subject to supposed unearned inequality. Most of us (including me and I
suppose, if it were reified, the Constitution) reject racial inferiority
theories. Most of us believe that there is also at least some generalized
discrimination. But if that generalized discrimination results in certain
minorities being disproportionately represented among those who are poor or
who attend poor schools, that is not a constitutional bar to helping the
poor and those attending poor schools.
A side-light: does the Texas 10% program include private and parochial
schools? Suppose it does not, and that state universities fill their entire
student bodies from the top 10% at public high schools. Is that a denial of
equal protection or an impermissible burden on exercise of the right to get
a private education? How much of an advantage in the admissions process can
be given to public school students before the rights of nonpublic school
students (e.g., inner city Catholic High School students, many of whom are
minorities) are violated?
Mark S. Scarberry
Pepperdine University School of Law
mark.scarberry at pepperdine.edu
From: Volokh, Eugene [mailto:VOLOKH at mail.law.ucla.edu]
Sent: Monday, June 26, 2000 1:21 PM
To: CONLAWPROF at listserv.ucla.edu
Subject: Re: Post-Hopwood plans
Well, it seems to me that in the context of programs that are
challenged as burdening nonwhites, the framework is pretty well-established
by Hunter, Washington v. Davis, and Arlington Heights. Facially neutral
rules are treated as racially discriminatory if they would not have been
implemented but for a desire to burden or benefit people of one or another
race. Thus, if a school gives a preference to applicants whose family is
willing to donate a lot of money to the school, this will not by itself
trigger heightened scrutiny under the Equal Protection Clause, even though
the rich may be disproportionately white. But if the court is persuaded
that the policy would not have been implemented but for this racial effect,
see Arlington Heights, then the policy will be treated as racially
discriminatory. I take it that most people would agree that this is the
It seems to me that at least presumptively the same analysis would
apply to scholarships for poor applicants. The fact that they will increase
the fraction of black and Hispanic students in the student body is entirely
unobjectionable, and does not by itself trigger heightened scrutiny under
the Equal Protection Clause. But if a court is persuaded that the policy
would not have been implemented but for this racial effect, then the policy
will be treated as racially discriminatory.
Again, one might argue that policies that are aimed at increasing
the number of blacks or Hispanics should be treated differently from
policies aimed at increasing the number of whites. But it seems to me that
there's nothing nonsensical about applying the orthodox view -- such an
approach would *not* "preclude the school from giving financial scholarships
based on financial need," if such a scholarship program would have been
implemented without regard to its racial effects.
Frank Cross writes:
How about another analogy? Hopwood clearly invalidated state
minority scholarships. Some argued that pure financial need based
scholarships would make up for the invalidation, because the poor in Texas
are disproportionately minority. Under the reasoning on this board, Hopwood
would then preclude the school from giving financial scholarships based on
financial need. Do you really think that makes sense?
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