Programs of affirmative action, aimed at increasing opportunities for women and members of racial and ethnic minorities in employment and higher education, have sometimes taken the form of numerical quotas. In regents of university of california v. bakke (1978) sixteen places in a state university medical school's entering class were reserved for minority applicants; in fullilove v. klutznick (1980) ten percent of funds in a federal public works program were reserved for minority-owned businesses. Such quotas have been challenged as denials of the equal protection of the laws, with mixed doctrinal results.
Opponents of racial quotas maintain that it is offensive to penalize or reward people on the basis of race—in short, that the Constitution is, or ought to be, colorblind. Opponents discern in quotas a subtle but pervasive racism, in the patronizing assumption that persons of particular colors or ethnic backgrounds cannot be expected to meet the standards that apply to others. This assumption, the opponents argue, is, in its own way, a badge of servitude, stigmatizing the quotas' supposed beneficiaries. Some opponents see quotas as part of a general trend toward dehumanization, robbing individuals of both personal identity and human dignity, lumping them together in a collectivity based on other people's assumptions about racially defined traits.
Unfortunately for today's America, race has never been a neutral fact in this country. Those who defend affirmative action generally admit to some uneasiness about the potential abuse of racial distinctions. They argue, however, that there is no real neutrality in a system that first imposes on a racial group harsh disadvantages, readily transmitted through the generations, and then tells today's inheritors of disadvantages that from now on the rules prohibit playing favorites. If either compensation for past racial discrimination or the integration of American institutions is a legitimate social objective, the proponents argue, a government in pursuit of those objectives can hardly avoid taking race into account.
The recent attack on racial quotas draws fuel from an emotional reservoir filled two generations ago by universities that limited admission of racial and religious minorities—most notably Jews—to specified small quotas. This ugly form of discrimination was part of a systematic stigmatization and subordination of minority groups by the dominant majority. The recent quotas are designed to remedy the effects of past discrimination, and—when they serve the objective of compensation or integration—are not stigmatizing. They do, however, use race or ethnic status as a means of classifying persons, and thus come under fire for emphasizing group membership rather than "individual merit."
The right to equal protection is, indeed, an individual right. Yet the term "individual merit" misleads in two ways. The word "individual" misleads by obscuring the fact that every claim to equality is a claim made on behalf of the group of persons identified by some set of characteristics: race, for example, or high college grades and test scores. To argue against a racial preference is not to support individual merit as against a group claim, but to argue that some other group, defined by other attributes, is entitled to preference.
"Merit" misleads by conveying the idea of something wholly intrinsic to an individual, apart from some definition of community needs or purposes. When we reward achievement, we are not merely rewarding effort, but are also giving out prizes for native talents and environmental advantages. Mainly, we reward achievement because society wants the goods produced by the combination of talents, environment, and effort. But it is also reasonable to look to past harms and potential contributions to society in defining the characteristics that deserve reward. We admit college achievers to law schools not to reward winners but to serve society with good lawyers. If it be legitimate to seek to end a system of racial caste by integrating American society, nothing in the idea of individual merit stands in the way of treating race as one aspect of "merit."
Race-conscious remedies for past governmental discrimination were approved in decisions as early as swann v. charlotte-mecklenburg board of education (1971). Affirmative action quotas pose another question: can government itself employ race-conscious remedies for the effects of past societal discrimination? In Fullilove, six Justices agreed on an affirmative answer to that question, at least when Congress prescribes the remedy. Bakke was complicated by a statutory claim; its result—and its practical effect in professional school admissions—was a distinction between racial or ethnic quotas, which are unlawful, and the use of racial or ethnic status as "one factor" in admission, which is lawful.
The distinction was a political success; it drew the fangs from a controversy that had turned venomous. But the distinction between a quota and a racial factor is more symbol than substance. If race is a factor, it will decide some cases. How many cases? The weight assigned to race surely will be determined by reference to the approximate number of minority admittees necessary to achieve the admitting university's goals of educational "diversity." The difference between saying "sixteen out of a hundred" and "around sixteen percent" is an exercise in constitutional cosmetics—but it seems to have saved affirmative action during a critical season.
Kenneth L. Karst
Karst, Kenneth L. and Horowitz, Harold W. 1974 Affirmative Action and Equal Protection. Virginia Law Review 60:955–974.
Van Alstyne, William W. 1979 Rites of Passage: Race, the Supreme Court, and the Constitution. University of Chicago Law Review 46:775–810.