(image via wwu.edu)To read Margaret Schmidt’s blog post, “A Farewell to Affirmative Action,” click here.
Affirmative action can be a divisive topic, especially when university admissions programs use such policies as part of their decision-making process. Fittingly, the Cornell Law School Journal of Law and Public Policy Blog is an ideal forum to analyze affirmative action policies as its goal is to “foster[] debate and publish[] diverse viewpoints.” As such, I presumed that Margaret Schmidt’s recent post, “A Farewell to Affirmative Action”, was written from the standpoint of someone seriously engaged in considering the merits of affirmative action.
I was wrong.
Unfortunately, Ms. Schmidt used the blog to compose a piece devoid of legal analysis that over-simplified serious issues surrounding affirmative action in higher education. Indeed, throughout Ms. Schmidt’s post, she fails to cite the U.S. Constitution, the Equal Protection Clause, or the Fourteenth Amendment, and instead opts to make blatantly false assertions which reflect what the reader can only surmise is a personal opinion.
In her piece, Ms. Schmidt discussed Fisher v. University of Texas at Austin, a case considered before the Supreme Court of the United States on October 10, 2012. The Court’s decision will address whether the Equal Protection Clause permits the University of Texas at Austin to consider race as one factor in admissions decisions. I agree with Ms. Schmidt that soon the Court may find affirmative action policies to violate the Equal Protection Clause of the Fourteenth Amendment, but not because the Supreme Court of the United States rendered a “misguided decision” in prior affirmative actions cases. Rather, I believe that the Court may determine that student body diversity in higher education is not a compelling state interest that can justify the use of race in admission decisions. Judging from the content of her article, it would appear that Ms. Schmidt weighed both the merits of controversy and of substance for her piece, and clearly opted for controversy.
For example, Ms. Schmidt veers away from scholarly analysis and chooses to cast broad (and unsupported) assertions when she notes that “affirmative action policies do not accomplish any of the objectives furthered to justify them… [and that] they create an unfair situation for any individual who does not fit into the rigidly defined category of a ‘qualified minority candidate.’” [Emphasis added]. Beyond failing to support her claim, Ms. Schmidt fails to recognize the breadth of such an assertion when contrasted against such a narrow observation. Most notably, she takes issue with this “unfair situation” with respect to race, but fails to criticize policies that afford so-called “Legacy Candidates” the similar perceived advantage. Indeed, in 2009, Princeton admitted 9.2% of the applications submitted for admission, while they accepted 41.7% of alumni children applicants. Surely, Ms. Schmidt’s moral outrage should extend to such admission decisions as well.
It is disingenuous to say that affirmative action policies do not accomplish any of their objectives. A glance as the Amicus Curie briefs for the University of Texas in this case shows that there are many associations and organizations who find that such policies not only accomplish diversity objectives within schools but also greatly enhance educational and professional communities. Just within the legal community, the Law School Admissions Council believes that affirmative action “has been effective in facilitating optimal legal education, allowing law schools to account for numeric measures of certain cognitive skills along with many other applicant attributes, including race, in assembling a class that will maximize the educational experience of all students.”
Perhaps most disturbing is Ms. Schmidt’s analysis of remedial measures to address past discrimination. She notes that affirmative action benefits “people who have suffered absolutely no discrimination” and that “past discrimination definitely does not automatically influence their status today.” This is patently false and a gross generalization. Indeed there is a large body of literature that shows how racial discrimination affects educational attainment, mental and physical health outcomes, and socioeconomic status. Ms. Schmidt should know that students of color – regardless of socioeconomic status – still experience discrimination, even at Cornell University.
Ultimately, affirmative action policies in admission decisions will likely always draw both criticism and support, and I believe that there can and should be informed and sophisticated discourse surrounding such controversial topics. Disappointingly, Margaret Schmidt’s post did not provide for such a productive discussion, instead presenting the legal community with flawed commentary and void of support for inaccurate assertions. Instead, I will look forward to the Court’s opinion in the coming weeks.
