The Equal Protection Clause Forbids Racial Preferences in State University Admissions

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Thursday, December 3, 2015

The Fourteenth Amendment to the U.S. Constitution provides that: "No State shall … deny to any person within its jurisdiction the equal protection of the laws.” Yet many state universities give substantial preferences to certain races in their admissions decisions. In Regents of the University of California v. Bakke (1978), the Supreme Court approved such preferences, but the case was close, and controversial, and the question will be back before the Supreme Court this term. One side may argue that these preferences level the playing field, remedy prior discrimination, and enhance diversity within the classroom, thus redeeming the true promise of equal protection. But the other may say that these preferences – in favor of some races, at the expense of others – are racial discrimination pure and simple, the precise evil that the Equal Protection Clause was intended to forbid.

Presented in partnership with the National Constitution Center.    

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  • RogerClegg90px


    Roger Clegg

    President & General Counsel, Center for Equal Opportunity

  • StuartTaylor90px


    Stuart Taylor, Jr.

    Nonresident Fellow, Brookings & Co-Author, Mismatch

  • DeborahArcher90


    Deborah Archer

    Director, Racial Justice Project & Professor, New York Law School

  • ErwinChemerinsky90px


    Erwin Chemerinsky

    Dean, University of California, Irvine School of Law

    • Moderator Image


      John Donvan

      Author & Correspondent for ABC News

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For The Motion

Roger Clegg

President & General Counsel, Center for Equal Opportunity

Roger Clegg is president and general counsel of the Center for Equal Opportunity. He focuses on legal issues arising from civil rights laws – including the regulatory impact on business and the problems in higher education created by affirmative action. A former deputy assistant attorney general in the Reagan and Bush administrations, Clegg held the second highest positions in both the Civil Rights Division (1987-91) and in the Environment and Natural Resources Division (1991-93). He has held several other positions at the U.S. Justice Department, including assistant to the solicitor general (1985-87), associate deputy attorney general (1984-85), and acting assistant attorney general in the Office of Legal Policy (1984). Clegg is a graduate of Yale University Law School.

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For The Motion

Stuart Taylor, Jr.

Nonresident Fellow, Brookings & Co-Author, Mismatch

Stuart Taylor, Jr. is an author, freelance writer, lawyer, and nonresident fellow with the Brookings Institution. Often called one of the nation's leading legal journalists, he frequently writes on the Supreme Court and a wide range of legal and political issues. Stuart has coauthored several critically acclaimed books, including Mismatch: How Affirmative Action Hurts Students It's Intended to Help, and Why Universities Won't Admit It (2010) in which he and Richard Sander explain how racial preferences harm minority students. He is currently coauthoring a book on the campus rape panic, focusing on how politicians, academics, and the media railroad the falsely accused. He wrote for The New York Times from 1980 to 1988; American Lawyer Media from 1989 to 1997; National Journal and Newsweek from 1998 to 2010; and various publications since 2010. He graduated from Princeton University and Harvard Law School, magna cum laude, and practiced law with Wilmer, Cutler & Pickering from 1977 to 1980.

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Against The Motion

Deborah Archer

Director, Racial Justice Project & Professor, New York Law School

Deborah N. Archer, an expert in the areas of civil rights and racial discrimination, is a professor of law at New York Law School, where she also serves as co-director of the Impact Center for Public Interest Law, dean of diversity and inclusion, and director of the Racial Justice Project. She was previously an assistant counsel at the NAACP Legal Defense and Educational Fund, Inc., where she litigated at the trial and appellate level in cases involving affirmative action in higher education, employment discrimination, school desegregation, and voting rights. She was also a fellow with the American Civil Liberties Union, where she was involved in federal and state litigation on issues of race and poverty. Prior to joining NYLS, Archer was an associate at Simpson, Thacher & Bartlett LLP. She has participated as amicus counsel in several cases before the U.S. Supreme Court, including Fisher v. University of Texas.

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Against The Motion

Erwin Chemerinsky

Dean, University of California, Irvine School of Law

Erwin Chemerinsky is the founding dean, distinguished professor of law, and Raymond Pryke Professor of First Amendment Law at the University of California, Irvine School of Law, with a joint appointment in political science. His areas of expertise are constitutional law, federal practice, civil rights and civil liberties, and appellate litigation. Previously, he taught at Duke Law School, where he won the Duke University Scholar-Teacher of the Year Award, USC School of Law, UCLA School of Law, and DePaul University College of Law. He is the author of eight books, including The Case Against the Supreme Court (2014), and more than 200 articles in top law reviews. He frequently argues cases before the nation’s highest courts, including the U.S. Supreme Court, and also serves as a commentator on legal issues for national and local media. In January 2014, National Jurist magazine named Chemerinsky as the most influential person in legal education in the U.S.

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Declared Winner: Against The Motion

Online Voting

Voting Breakdown:

44% voted the same way in both pre - and post-debate votes(16% voted FOR Twice, 23% voted AGAINST Twice, 5% voted UNDECIDED Twice). 56% changed their minds (5% voted AGAINST then changed to FOR, 10% voted UNDECIDED then changed to FOR, 10% voted FOR then changed to AGAINST, 29% voted UNDECIDED then changed to AGAINST, 2% voted FOR then changed to UNDECIDED, 0% voted AGAINST then changed to UNDECIDED)| Breakdown Graphic

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    • Comment Link Jefferson Sunday, 26 June 2016 13:47 posted by Jefferson

      While George W Bush wasn't the most eloquent speaker he had a great line on this issue, he would always warn against the "soft bigotry of low expectations". He is right on this point, when we have different expectations for people of different races...we have lowered the bar for certain groups and that IS a form of racism.

    • Comment Link Doc Thursday, 02 June 2016 20:54 posted by Doc

      This is a great and much needed debate. I am an African American man who has three college degrees. No, I did not benefit from affirmative action. I received an athlete scholarship in undergraduate school and I worked and paid my own way through the masters and Ph.d programs. However, I do feel the pain from our white brothers and sisters. You're right, two wrongs doesn't make a situation right. Discrimination against any person or a group of people is WRONG.

      However, I believe that the problem transcends race. This should be a constitutional rights issue. To solve a problem, we have to get to the root of the problem. Every child in this country should be entitled to a good quality K-12 education regardless of his or her socioeconomic status. This will level the playing field for everyone. The fact that some students, due to no fault of their own, study in substandard schools with outdated books, computers, and classrooms, etc., is a tragedy and a travesty. An even larger tragedy would be to allow this to continue. This is the area where state and local governments should focus a large amount of their time and resources.

    • Comment Link Frank L. Friday, 29 April 2016 14:23 posted by Frank L.

      The against side want artificial racial quotas in universities instead of their natural shares based on test scores.

    • Comment Link Peter Ross Sunday, 24 April 2016 19:14 posted by Peter Ross

      I dunno about you but trying to understand the logic and argument of this particular show was an IQ test in and of itself. I was lost just trying to process and weigh the arguments that frankly sounded confusing and contradictory on both sides. I'm still sweating bullets just trying to read the Debate Details and Results above. Frankly I haven't had this much anxiety over a postured debate proposal since I flunked outta law school.

    • Comment Link Brandon Smith Wednesday, 13 April 2016 21:50 posted by Brandon Smith

      As an African American student currently enrolled in classes at a highly competitive university, the topic of this debate pertains directly to my educational experience. I attend a private institution that utilizes affirmative action acceptance metrics when evaluating incoming applicants, so I have directly benefitted from institutionalized racial preference. Have I dropped out due to the strenuous nature of my courses? No. Do I feel belittled or insulted for the university having considered my race, as well as my academic merit, when deciding to admit me? No. Do I encounter other minorities who are obviously ill prepared and unqualified to be attending such a prestigious and rigorous university? No. Has any scholarship that I have received been based wholly on my ethnicity? Absolutely not.

      However unfortunate it may be, generational, social, and institutional prejudice against minorities is still prevalent in our society. It affects the quality of K-12 education that African American, Hispanic, and other minority children receive, as well as their perceived potential value to society.

      For example, when I was in the 3rd grade I tested into the advanced learning program (ALPS) offered by the school district for students who showed advanced proficiency in Math, English, Science, and Reading. From that time on until the end of my 9th grade year (when the program ended), every parent-teacher conference that my mother attended was centered around why my teacher thought that I was a bad fit for the ALPS program. Though my grades, attendance, participation, and test scores were always near the top of my class, teachers continued to try to convince my mother that I wasn't fit for the advanced curriculum that I was learning. Their feelings were clearly reflected when, during one such conference, my 5th grade teacher told my mother that I was more likely to end up in jail than in college by the time I was 19, so the ALPS program wouldn't really benefit me in the long run.

      The only reasons that institutionalized prejudice didn't prevent me from attending a prestigious university are, first and foremost, the incredible support I received from a strong single mother, and second, the affirmative action acceptance policies utilized by the university I attend.

      I wish that our society was socially advanced enough that programs like affirmative action were no longer needed, and I believe that one day we will get there. Unfortunately, and understandably, we are not there yet, which is why racial preference in university admissions is still needed in order to protect minorities from societal prejudice left over from generations of hatred and maltreatment.

    • Comment Link Eric Monday, 14 March 2016 16:05 posted by Eric

      I'm white, but I'm certainly not privileged. I'm in the same boat as other comments here. I worked my way through college and had to go into debt to finance my own education. Seeing my classmates from high school get free rides through college because of their skin color was infuriating. Some of them had wealthier parents and a more privileged upbringing than I did, yet they were treated like gold.

      20 years later, I'm a successful business owner now. That experience has tainted my view of university graduates, and I am far more suspicious of the qualifications of minority applicants because of the easy ride they are getting through a university system tilted to discriminate against whites. White graduates have to actually work for the degrees they receive.

      This unfortunate tainting of my view is the lasting effect of Affirmative Action. It is having the exact opposite reaction in the workforce from what is intended. The ONLY way to stop racism is to become color blind. Blacks cannot receive preferential treatment. Neither can asians, hispanics, or whites. ANY OTHER SYSTEM is by its very definition "racist".

    • Comment Link Love is the answer Saturday, 13 February 2016 20:21 posted by Love is the answer

      To the many comments about the obvious slant of the audience--I was there. About 20-30% of the attendees were NYC middle school students. I spoke with them in the lobby before the debate. They were nice, thoughtful kids and it was great that their teachers sought out this opportunity for them. I am glad that they were there.

      That said, the kids told me in advance that I should vote undecided or vote that race preferences are unconstitutional so that I could switch my vote at the end of the debate. This was clearly part of their pre-debate prep at school. This gamesmanship is easy, obvious and makes the entire vote kind of a joke.

    • Comment Link Dylan Thursday, 28 January 2016 01:51 posted by Dylan

      Great debate but clearly rigged results (audience was audibly not 1/3 undecided as reported). I think this would have been better without the vote count.

    • Comment Link Townes van Z Monday, 25 January 2016 20:07 posted by Townes van Z

      I kept waiting for Jon Donvan, who is usually a fair and excellent moderator, to tell the crowd that whooping, screaming applause was inappropriate. I won't comment on the result except to agree with many others here that clearly a huge number of people who already had their minds made up prior to the start were in attendance. Next time please remind people that clapping is sufficient to show their approval and even that should be limited to when someone has FINISHED speaking.

    • Comment Link John Samuel Sunday, 17 January 2016 17:52 posted by John Samuel

      This debate was rigged. Irish were treated worse than the slaves. If the Irish can't have the preferential treatment, what rights a resent immigrant from Africa should have.

      Every Asian person and their children knows that they have to work twice as hard as everyone else. This promote the Asians to work harder to achieve same status.

      Look what is happening in Microsoft and Google. Once the company recognize that intelligence and innovation count more that one's color of the skin, they will be forced to hire the best talent possible.

      Keep discriminating to force the disadvantaged to work hard and end up in a better position than the privileged.

      No one keep the lamp in a place where it will be hidden, or under a bowl. Instead they put it on its stand, so that those who come in may see the light. There would a day man will be judged by the content of his character, not the color of the skin or national origin.

    • Comment Link Scott Ruffner Saturday, 16 January 2016 10:07 posted by Scott Ruffner

      Although I am a supporter of limited "Affirmative Action", and I found the technical legal argument presented by Prof. Chemerinsky (more so than the appeal to emotion by Prof. Archer) persuasive on the constitutional grounds, once again, the audience appeared to be packed to game the rules and the result at odds with both the larger (also unscientific) external votes, and with the shift in votes of "undecideds".

      As in the larger political context where ostensibly "independent" voters demonstrate consistently partisan behavior in the privacy of the voting booth, the audience is not even remotely persuasive as "undecided". It's simply not believable that the audience was made up of legal-minded hawks (previously ambivalent) moved by Chemerinsky's technical argument, or that the emotionally moved were so at odds with the broader population. The sampling (audience makeup) is clearly skewed (putting it politely).

      That just makes the whole "competition" of debate seem rigged, and deeply unappealing to people who enjoy the intellectual combat. You've gotta fix this, or fans are going to disappear. This was a lame win, even if you agreed with the "winners".

    • Comment Link George Dyke Monday, 11 January 2016 20:12 posted by George Dyke

      This debate was rigged. You're telling me that 43% of the audience was 'undecided' on this hot-button issue? In liberal New York? I think not. And did you hear the hooting and hollering when the result was announced? No, the deck was stacked, and the result was rigged.

    • Comment Link lakawak Saturday, 09 January 2016 02:42 posted by lakawak

      How DARE a school only want to allow white people to attend, or to give them a better chance to attend! That is RACIST! is the other way around? Oh..that's fine!

    • Comment Link Rachel Monday, 28 December 2015 16:51 posted by Rachel

      This debate was uncomfortable to listen to, with what seemed to be unwavering supporters of the opposition planted in the audience. The issue boiled down to political correctedness in an era of racial tension; why are we not allowed to call a spade a spade?

    • Comment Link Jbarnes Sunday, 27 December 2015 01:27 posted by Jbarnes

      Racial preference within university admissions is the equivalent of holding up one side of a lopsided see-saw in an attempt to make it even. Why not simply move the longer side in to make it equal. Then, you can simply watch the system work as it should.

      What the government is doing with this is saying, well we will just give minorities preference in college but oppressing other classes/races. What happens to those that don't go to college? It's a cop-out. Why not simply really attempt to fix the root issues rather than offer crutches. It hurts everyone doing it this way, except for the small percentage that actually get in and excel.

      What is significantly more interesting to me are four questions:

      1. Is this not creating yet another dependent system for an entire racial class(es) to leach on to?

      2. What happens when the system supposedly corrects itself and socio-economic classes switch. Will we then see whites/Asians receive preferential treatment?

      3. And finally: why stop here? why not just offer reparations via tax deducts to minorities? Isn't this where the heart of the issue lies - a rebuttal of slavery and separate-but-equal?

      4. If as a country we are the city on the hill, we do we not simply value and justify talent and the value one brings and leave race to the side. This system is inherently racist. Why would we want that?

    • Comment Link Alex Lee Monday, 14 December 2015 10:23 posted by Alex Lee

      I thought this was an excellent debate with good points raised for both sides. What I found disturbing was the obvious slant of the audience, that selected "undecided", when their cheers during the debate indicated which side they had already chosen.

      Unfortunately, I do not know of a way to prevent this type of bias in the voting results.

    • Comment Link Frank Saturday, 12 December 2015 18:31 posted by Frank

      What is it that liberals do not understand about equal protection? You either meet the standards set or you do not. By the time you reach college since it is not a required thing, it should be sink or swim at that point. Breaking the rules or standards because of someone's color is the exact opposite of equal treatment under the law. Two wrongs do not make a right.

    • Comment Link Eric Saturday, 12 December 2015 13:23 posted by Eric

      It is ridiculous how proponents of affirmative action have to engage in all sorts of word games that racial preferences are somehow not engaging in a preference for one race over the other. It's quite sickening.

    • Comment Link Greg Friday, 11 December 2015 19:01 posted by Greg

      I listen to these podcasts during my evening runs and, consequently, typically do not feel compelled to navigate my way to this website, track down the appropriate debate, and take the time to post in these threads.

      But Professor Archer's statement compelled me to take the time. Specifically, she stated that she "hoped" her schools took her race into account because her "SAT scores, my LSAT scores, and my GPA certainly did not tell my whole story."

      Too true, huh?

      Well, I'm a white guy who grew up dirt poor in rural America. Neither of my parents finished high school. My father suffered serious injuries at work while I was still a child, so my mother was forced to work several part-time jobs just to make ends meet. I know the feeling of having toast with a just little bit of peanut butter on it for dinner because, hey, that's all we had (and if you toast stale bread it becomes slightly more palatable).

      Nowadays, I'm a lawyer. I worked hard to get here. I debt financed both of my degrees. And in fact, when it came time to go to law school, I did pretty well on the LSAT. Apparently, my scores weren't good enough to crack the vaunted T14, the colloquialism by which we refer to the most elite law schools.

      Fair enough. I suppose I could have done better--taken a STEM major, gotten a better UGPA, or maybe a better LSAT score. I was just happy to "make it," after looking back at where I'd been. But can you imagine how frustrating it was for me to learn that several of my undergraduate classmates--minority students with the same soft science major, GPA, and LSAT scores--received not only admission to those elite schools, but substantial scholarships? Let me tell you, that's one way to breed resentment and carry it forward into society (ask Justice Thomas, actually).

      But I've moved past that. The problem with Professor Archer's claims is simple: they carry with it the not-so-tacit implication that, by virtue of my whiteness, my "SAT scores, my LSAT scores, and my GPA certainly" DID "tell my whole story."

      And I, of course, don't think that's true. I don't think it's true of anyone, actually. But if institutions are dead set on finding students of "diverse" backgrounds, then I'd rather they take a hard look at socioeconomics rather than the color of my peer's skin.

    • Comment Link Gabriel Friday, 11 December 2015 18:59 posted by Gabriel

      I have to say that I'm particularly skeptical about the results of the debate. The undecided part seems to me to big at first. During the whole debate you can hear all the cheering towards the against side. Yes, I'm actually accusing some part of the audience of manipulating the results. I would like to know how the audience gets to a particular debate and how the voting procedure is.

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