Affirmative Action and the Supreme Court

One of what I find to be the most interesting aspects of affirmative action is the wide variety of arguments there are both in its defense and for its abolition. What struck me most about the Michigan Law school case, and the other, older Supreme Court case that played an important role in identifying what was and was not constitutional in respect to these practices, was the stark difference between many of the arguments that we have been focusing on in discussion (especially those arguments emphasized in our theoretical reading) and the arguments that are being presented by both sides in this case, and eventually by the court itself.

In class on Tuesday, one claim I objected to when made by the other side was about the ultimate aim of affirmative action. I dismissed the claim that affirmative action existed chiefly to bring diversity to higher level education institutions and the corporate world. My argument was that diversity is not the aim of affirmative action; rather, its true purpose is equal opportunity and diversity would be a by-product of this more important aim. I determined that, because I don’t think that the groups that are not represented in the white-collar community are not capable of holding these types of positions, I think the lack of current diversity is a symptom of gross inequality of opportunity.

However, Justice Powell, who wrote the deciding decision in Regents of University of California v. Bakke, though he did think affirmative action was constitutional, completely dismissed the argument that our class discussion focused on most: that equal opportunity is the aim. According to Powell, it is actually the value in having diversity in our educational institutions and our workforce that fulfills a government goal important enough to justify someone discriminative measures, a rationale that Sandra Day O’Connor continues to defend in her “syllabus.” The Consolidated Amici Curiae Brief from retired military leaders goes even further. Their argument also does not address equal opportunity, but it is clear that, to the military, diversity is not their primary concern as well. Diversity, in their argument, is just a necessary stepping stone in the pursuit of an orderly cohesive unit free from racial tension. Their concern is not a moral one but instead one that is purely pragmatic. Having fewer minorities as officers, they argue, creates the appearance of a racist and discriminatory institution, and perpetuates internal conflict that interferes with goals of the military. I am a tentative supporter of affirmative action policies, but I find this reason behind the practice problematic. I can understand it as a defense of equal opportunity, and, even, I am now convinced, diversity. However, is maintaining order really an adequate reason to allow (and even, in some cases, require) discrimination in our institutions?