AFFIRMATIVE ACTION AS “REVERSE DISCRIMINATION” MISSES THE POINT
Professor Marjorie Cohn
Thomas Jefferson School of Law

Since the Supreme Court’s recent momentous affirmative action admissions decisions, the talking heads have railed against “reverse discrimination,” a term that entered our vernacular 25 years ago with the Bakke opinion.

But focusing on equal rights for whites misses the point. Justice Ruth Bader Ginsburg, in her separate opinions in the Michigan cases, hits the nail on the head. In her dissent in Gratz, where the Court struck down the University of Michigan’s undergraduate admissions program, she decries the majority’s view that judicial inspection of all official race classifications should be judged by the same standard of review. This would be appropriate, she writes, if our country were “free of the vestiges of rank discrimination long reinforced by law.”

Ginsburg documents the large disparities between whites and minorities in earning power, unemployment rates, poverty levels, and access to health care and quality education. She also discusses institutional racism. Ginsburg then says that the issue presented in Bakke – where a white man claimed discrimination because blacks were admitted before him – is categorically distinct from the issue presented in Brown v. Board of Education – where the Supreme Court said that black kids have the right to go to the very same schools as white kids. Ginsburg reinforces this distinction with reference to international treaties, saying “Contemporary human rights documents draw just this line; they distinguish between policies of oppression and measures designed to accelerate de facto equality,” citing the United Nations-initiated Conventions on the Elimination of All Forms of Racial Discrimination and on the Elimination of All Forms of Discrimination Against Women.

The United Nations Human Rights Committee, which administers the International Covenant on Civil and Political Rights, has determined that affirmative action may involve preferential treatment, and as long as it is needed to correct discrimination in fact, “it is a case of legitimate differentiation.”

Illegitimate differentiations have been maintained for years. The children of alumni – who are primarily white – have always been granted preference in admission at the elite universities (e.g., George W. Bush). This system has served to discriminate against the children of non-alumni, or non-whites.

Justice Clarence Thomas, dissenting in the Grutter law school decision, where the Court held that race can be used as a factor to achieve diversity in higher education, says “blacks can achieve in every avenue of American life without the meddling of university administrators.” He focuses on the stigma attached to blacks who take positions in “the highest places of government, industry, or academia,” saying “it is an open question today whether their skin color played a part in their advancement.” Thomas apparently wonders whether he himself benefited from affirmative action when he was admitted to Yale Law School and appointed to the Supreme Court. In any event, he disingenuously seeks to slam the door behind him, and deprive future generations of black students the opportunities that were available to him.

Thomas misses the point. As Justice Sandra Day O’Connor writes for the majority in Grutter, “By virtue of our Nation’s struggle with racial inequality, such [minority] students are both likely to have experiences of particular importance to the Law School’s mission, and less likely to be admitted in meaningful numbers on criteria that ignore those experiences.” In my own criminal procedure classes, the perspectives of African American students about racial profiling which enrich the classroom discussion could not be duplicated by their white counterparts. Indeed, according to O’Connor, “Effective participation by members of all racial and ethnic groups in the civil life of our Nation is essential if the dream of one Nation, indivisible, is to be realized.”

September 5, 2003