Jewish World Review June 24, 2004 / 5 Tamuz 5764

Wendy McElroy

Wendy McElroy
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The decline of affirmative action | A year ago, on June 23rd, the Supreme Court ruled in favor of affirmative action (AA) in two cases that challenged the University of Michigan's (U-M) admissions policies. Yet Ted Shaw, president of the National Association for the Advancement of Colored People (NAACP) Legal Defense Fund, has stated, "in the year since Michigan...some institutions have retreated from affirmative action even though we won the case." Why is AA on the decline?

There are several reasons. First, the Supreme Court decisions were not a clear victory, with the main case Grutter v. Bollinger et al. decided by a close 5-4 vote. In the second case, Gratz et al. v. Bollinger et al., the Court struck down the specific AA policy being used for undergraduate admission and insisted upon a more 'holistic' approach to evaluation.

The Supreme Court's ambiguous attitude toward AA in academia is echoed through lower courts across America, with some states explicitly rejecting the policy. Last Friday, for example, a Florida appeals court rejected a NAACP challenge to rules that eliminated racial and gender preferences in public university admissions. True, the rejection was on a technicality but the fact remains: AA advocates can no longer assume that courts will smile upon their goals or facilitate them.

Even favorable court decisions can cause problems for AA. The holistic assessments mandated by the Supreme Court replaces faster, simpler formulas that automatically assigned "credits" to minorities. This means that cash-strapped universities have to hire extra staff to evaluate long application forms if they wish to be "in compliance." The undergraduate admissions office of U-M, for example, spent $1.8 million to hire new staff and adapt its application process.

The cost of non-compliance is high, with "excluded" students increasingly willing to file discrimination suits. In doing so, they find support from two aggressive organizations, the Center for Equal Opportunity and the Center for Individual Rights, which represented plaintiffs in the U-M case. Both organizations are trying to open up race-based scholarship and recruiting programs to all students. Each uses an argument familiar to AA advocates: civil rights.

Another barrier to AA policies based on race and gender is a growing perception that they are de facto obsolete. In the U-M opinion, Sandra Day O'Connor stated that affirmative action would not be needed in 25 years. Many call that time estimate wildly pessimistic: AA is not needed right now.

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Whichever estimate you use, universities are reluctant to invest in a program that may be on its way out. A large part of AA's obsolescence comes from the collective impact of sustained, impassioned criticism of the policy as unjust.

At its root, AA is an ambitious campaign of social engineering. It is an attempt to redistribute social and economic power by forcing institutions - through law and court precedents - to prefer women and minorities. The underlying sentiment is a noble one that is being badly used. Speaking in opposition to the U-M case, President Bush stated, "I strongly support diversity of all kinds, including racial diversity in higher education. But the method used by the University of Michigan to achieve this important goal is fundamentally flawed."

It is time to question whether AA is a noble goal. Advocates of U-M's policies speak in collective terms about race disadvantage and gender inequities. What they don't deal with is individuals. AA admission (and other) policies do not look at the individual merits of your son or daughter at the grade average they've struggled to maintain, the volunteer organizations they've joined, the dreaming human beings they are.

Instead, AA advocates see skin color and genitalia. There is nothing noble about that vision.

How did this happen?

AA began on June 19, 1963, when President John F. Kennedy sent a Civil Rights Act (CRA) to Congress to counter racial discrimination in the work place. The CRA, intended primarily for blacks, met stiff political opposition. On November 22, 1963, Kennedy was assassinated. His successor Lyndon B. Johnson proclaimed, "No memorial oration or eulogy could more eloquently honor President Kennedy's memory than the earliest passage of the civil rights bill for which he fought so long." But opposition was still stiff.

On February 8, 1964, Congressman Howard W. Smith of Virginia made a colossal miscalculation in the House of Representatives. In an attempt to block the CRA, he suggested inserting the word 'sex' after the word 'religion' whenever it appeared in Title VII, which guaranteed 'fair' employment practices. By tying it to the then controversial women's movement, Smith hoped to kill the CRA.

In his book "Freedom Will Conquer Racism and Sexism", J. Edward Pawlick, comments on reaction in the House."[T]he laughter became too great... and Congressman Smith had to stop." Disingenuously, Smith assured the House that he was serious. The bluff backfired. The CRA passed.

Within decades, government had imposed de facto quotas and fair practice standards for women (and minorities) throughout the work place and academia. That had not been Kennedy's intention.

Gandhi once said that the means are the ends in process. It is not possible to achieve equality and tolerance by instituting policies of preference and exclusion. The result will only be more preference and more exclusion.

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JWR contributor Wendy McElroy is the editor of She also edited Freedom, Feminism, and the State (Independent Institute, 1999) and Sexual Correctness: The Gender Feminist Attack on Women (McFarland, 1996). She lives with her husband in Canada. Comment by clicking here.


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04/30/04: Facts or propaganda? Deconstructing advocacy
03/26/04: Reading between the numbers
03/11/04: When ‘mother’ is a bureaucracy
03/04/04: Do Gun Control Activists Pad Gun Death Statistics?
02/26/04: The Separation of School and State
01/21/04: A Man's (and Woman's) Home Is a Castle
12/17/04: The Conservative Cookie Rebellion
11/26/03: Zero Patience for Zero Tolerance
10/22/03: Killing the Good Samaritan
10/08/03: Collective western guilt burdens today's children
10/01/03: Families pay price for government spending
09/24/03: Do Poor Fathers Deserve Debtors' Prison?
08/29/03: Going to extremes
08/23/03: The Marriage Strike
07/30/03: University Students Deserve Human Rights
07/09/03: The PCspeak of Diversity
07/02/03: Rebuttable presumption of joint custody
06/18/03: A Conscientious Objector to the Gender War
06/04/03: Gender issues impacted by masculinists
05/28/03: The value of error
05/21/03: U.S. to Fund Gender Feminism in Africa?
05/14/03: Cut men: Do they not bleed?
05/07/03: Women with guns fight back
04/30/03: No oil for food
04/28/03: The Great Lie
04/16/03: War may redefine gun control
04/09/03: Why we must discuss a post-war U.S.
04/02/03: Leftist feminists using war as podium
03/26/03: Laying down 'the white woman's burden'
03/19/03: Iraq War may kill feminism as we know it
03/13/03: A woman to replace Saddam
02/19/03: Elder abuse demands family solutions
02/13/03: Iraqi women brutalized by Saddam
01/29/03: There ought not to be a law
01/22/03: Gambling with race and gender cards
01/02/03: The future of fatherhood
12/26/02: U.N. complicit in forced sterilizations
12/20/02: Compassion, kindness killed by fear, paranoia
12/11/02: Affirmative action insults immigrant contributions
12/04/02: Stand up for yourself
11/27/02: Feminist fighting: Aren't we all women?
11/20/02: Rights & responsibilities
11/14/02: Feminist "urban legends"
11/06/02: Equal access does not guarantee equal outcome
10/24/02: Battered Women's Syndrome: Science or sham?
10/17/02: I demand a civil society that respects the individual and acknowledges the existence of honest disagreement between human beings of good will
10/09/02: Abortion debate is about to be ratcheted up yet again
10/02/02: 'Restorative justice' offers battered women more options
09/25/02: Why is prez promising to embrace UN radical social engineering programs?
09/18/02: Dirty dealings kill men's panel
09/11/02: Taking back your power
09/05/02: Calm down, Hootie!
08/21/02: Will Congress empower a group of radical feminists to oversee money slated for Afghan women?
08/14/02: Empower the U.N. with power to sculpt American laws and institutions into the image of gender feminism!?
08/01/02: Practicing 'intellectual virtue'
07/24/02: All male, bad. All female, good: Your tax dollars at work
07/11/02: Put Up or Shut Up
07/03/02: NOW they've done it, again!
06/19/02: A dark cloud shades U.N. Women's Treaty
06/10/02: This Father's Day, send justice
05/31/02: When good women do nothing
05/28/02: Feminists claiming motherhood as liberal cause
05/20/02: Wounds in health care system are self-inflicted: Or, why "my son the lawyer" makes more sense
05/10/02: Are parents boycotting public schools?
05/03/02: Women can't be gun-shy about defense
04/25/02: The Bill of Intellectual Rights
04/19/02: World Bank or World Government?: The World Bank is blackmailing impoverished nations
04/12/02: Victims From Birth: Engineering Defects in Helpless Children Crosses the Line
04/05/02: The professor made me cry, now I will make him pay!
03/31/02: Doctors and teens --- parents be on guard
03/22/02: I was born, now I'm suing you!
03/15/02: The 21st Century is knocking at the barricaded door of feminism
03/08/02: Fun and games at the Ms mag Bulletin Board
03/01/02: Andrea Yates, NOW, and Feminist Jurisprudence
02/22/02: Lady, Your Slip is Showing
02/14/02: 'Abusing' Valentine's Day
02/11/02: Is NOW Pro-Choice or Pro-Abortion?
02/01/02: Are 'fathers' rights' a factor in male suicide?
01/25/02: Is the U.N. Running Brothels in Bosnia?
01/18/02: 'Freedom' at another's (moral) expense
01/11/02: Feminists hit Ground Zero with WTC funds grab
01/04/02: Males winning "diversity discrimination" cases is good?
12/21/01: Good will toward men
12/14/01: "Boss Tweed" feminism
12/07/01: Call me 'anti-woman'

© 2004, Wendy McElroy