Paul deLespinasse: The Supreme Court will probably bungle affirmative action cases
The Supreme Court is again considering challenges to affirmative action admissions at universities.
Were it not for one major obstacle, the court could easily reject all legal challenges to affirmative action.
A free, progressive and orderly society would maximize opportunities to enter voluntary associations, created by mutual consent of all their parties.
If limits on the right to enter voluntary associations are necessary, like all limits on freedom this should only be done with genuine laws — general rules of action enforceable by sanctions.
The relationship between a college and its students is a voluntary association. Naturally, since mutual consent is required, both student and college have the right to refuse to associate.
The reasons student or college refuses to consent must be legally irrelevant, since genuine laws must be rules of action, not rules based on the reasons people take those actions. (Otherwise, the very same action — say, admitting a particular student — could be either legal or illegal, a ridiculous possibility.)
If nobody could challenge a college's decisions about who to admit, affirmative action programs would clearly be legal.
Standing in the way of this simple basis for upholding affirmative action is the fact that affirmative action programs are racially discriminatory. They evaluate African-Americans and some other minorities using lower standards than for other applicants.
And American law since enactment of the Civil Rights Act of 1964 has attempted to make racial discrimination illegal.
Most of the Civil Rights Act, however, is not genuine law, since genuine laws can only regulate actions, not the reasons people take actions. Discrimination is one reason why people may act in a certain way, but is not itself an action. The Civil Rights Act is therefore largely pseudo-law, not genuine law.
Assuming that the Constitution doesn't authorize enactment of pseudo-laws, courts could hold that Congress exceeded its constitutional authority when it enacted the Civil Rights Act. If that legislation is unconstitutional, obviously affirmative action would be legal.
However courts should resist pushing this logic that far. The most effective parts of the Civil Rights Act, dealing with discrimination against business customers, could be preserved since they could have simply required businesses to accommodate all customers, first come, first served.
This would not require inquiry into the reasons a business had refused to serve a customer. Courts could reasonably reinterpret the legislation to have done this.
Not so when the Civil Rights Act prohibits discrimination against people applying for employment or for admission into colleges and universities. It makes no sense to say that an employer (of pilots, for example) or a university has a duty to employ or admit all applicants first come, first served.
Hiring and college admission decisions are inherently selective, and attempts to make some reasons for such decisions illegal are clearly pseudo-laws and, hence, unconstitutional.
Unfortunately, this is not how the Supreme Court will look at the current cases. It will probably strike affirmative action down under the Civil Rights Act, ignoring the vital importance of maximizing people's right to enter into voluntary associations, a right limited only by genuine laws.
The Equal Protection clause, which the Court may also cite, has no relevance to the discrimination involved in affirmative action even at state universities. It makes no sense to apply it to government decisions to enter into voluntary associations.
All colleges should be legally free to engage in affirmative action. But this is not to say that they shouldactually have such programs, an entirely separate question.
Leelila Strogov, whose company prepares students for college admissions, says that affirmative action is "an inadequate solution to a much bigger problem, which is a lack of reliable access to high quality education in the K-12 space in our country."
She continues, " Hopefully, proactive steps will be taken to ensure that students experiencing racial or socioeconomic barriers are presented with opportunities at an earlier age rather than trying to compensate for these gaps at the college admissions level."
Amen to that!
— Paul F. deLespinasse is professor emeritus of political science and computer science at Adrian College. He can be reached at pdeles@proaxis.com.
This article originally appeared on Hillsdale Daily News: Paul deLespinasse: The Supreme Court will probably bungle Affirmative Action cases
