By Gail Heriot
(Ms. Heriot is a member of the U.S. Commission on Civil Rights. This piece is adapted from Ms. Heriot’s Commissioner Statement for the Civil Rights Report on Affirmative Action at American Law Schools released last fall.)
I have no doubt that those who originally conceived of race-based admissions policies – nearly forty years ago – were acting in good faith. By lowering admissions standards for African-American and Hispanic students at selective law schools, they hoped to increase the number of minority students on campus and ultimately to promote minority integration into both the legal profession and mainstream society. Similarly, however, I have no doubt of the good faith of those who opposed the policies. Indeed, their warnings that academic double standards cannot solve the nation’s problems and may well exacerbate them seem especially prescient in light of recent research.
The real conflict over race-based admissions policies has not been about good or bad faith or about whether we should aspire to be a society in which members of racial minorities are fully integrated into the mainstream. There is no question we should. The conflict is about whether racial discrimination – something that nearly all Americans abhor – is an appropriate tool to achieve that end. Put starkly: Should the principle of non-discrimination be temporarily sacrificed in the hope that such a sacrifice will, in the long run, help us become the society of equal opportunity that we all aspire to?
Justice Stanley Mosk warned of the risks associated with such temporary compromises with principle over thirty years ago, when, writing for the California Supreme Court in Bakke v. UC Regents (1976), he held racially discriminatory admissions policies to be unconstitutional:
To uphold the University would call for the sacrifice of principle for the sake of dubious expediency and would represent a retreat in the struggle to assure that each man and woman shall be judged on the basis of individual merit alone, a struggle which has only lately achieved success in removing legal barriers to racial equality.