Equality deferred again

“We hold these truths to be self-evident: That all men are created equal…”

So wrote the Founders of this nation 227 years ago in the Declaration of Independence, and yet we have struggled ever since to realize the potential of that timeless ideal. Equality was an orphan as the institution of slavery marched on. Even after the Civil War conquered that monstrosity and the Fourteenth Amendment demanded that no person shall be denied “the equal protection of the laws,” segregation flourished and women were denied the right to vote.

And here in 2003 the Supreme Court, courtesy of Justice Sandra Day O’Connor, has just informed us that it expects true equality in law school admissions in about “25 years from now,” as her opinion in Grutter v. Bollinger upheld the University of Michigan law school’s affirmative action program. Universities may continue to take the color of a person’s skin into account in deciding whether to invite them to join the student body, so long as the admissions boards aren’t so crass as to put a number value on it.

See, if you put a number on the value of skin color to benefit a minority, you’re discriminating based on race–a violation of the “equal protection of the laws.” But if you wink and nod and pick a lesser-qualified student with a favored skin color over someone with better qualifications and you say that doing so will reach an undefinable “critical mass” of minority students, well, you’re apparently not discriminating. For now. Maybe not later. We’ll see.

It’s so depressing. Two hundred and fifty years go by since the principle that launched a nation heralded the coming of representative government and individual rights, and yet we still make excuses to hold some people as more equal than others. Why is true equality so hard to achieve?

This time it’s because we’re not bothering to look at the one institution today that promotes racial inequality year after year: public grade schools.

There wouldn’t be affirmative action programs in colleges if public grade schools (which serve the vast majority of students who apply to college) graduated students with approximately equivalent results across racial lines. Instead, public schools are giving white and Asian-American students a huge leg up over other minorities.

Why do you think Asian-Americans are excluded from every affirmative action program while other minorities are not? It’s because Asian-American students perform quite well in our public education system–better than whites, in fact–and so have no problems getting into college. If anything, they are “over-represented” as a minority on campus. But African-American, Mexican-American, American Indian, and Puerto Rican students all persistently perform worse grade-wise and on standardized tests like the SAT. The average African-American student scores 100 points worse on the SAT than the average white student. Think that might factor into the discrepancy in college admissions rates? Of course it does.

Affirmative action in college admissions is just a symptom of the real problem. It’s nothing more than a system by which our nation’s colleges take the flack for the racial failures of the public schools. And the worst part is, that’s how it has always been. The NAACP stubbornly sticks by public education, roundly denouncing voucher programs and other alternatives, despite the fact that public education has never provided African-American students with the same tools for the future as have been given to white and Asian-American students. Unless this inequity is cured, why should we ever expect affirmative action to go away?

The truth of this is only now starting to dawn upon the African-American community. Safiya McClinton, after writing post-Grutter in the Washington Post that she feels “concerned that one day, minority scholarships and recruitment programs will all be deemed preferential treatment–and unconstitutional”–as if these programs aren’t already preferential treatment!–opines that fellow African-Americans “should also enroll our children in our own private schools starting in kindergarten,” thereby “ensur[ing] that our children have top educations that will prepare them for any university.” In other words: Wake up, Black America. Get out of the public schools if you want to compete.

But in the meantime, Justice O’Connor has drawn a warm, fuzzy blanket over these problems. Perpetuating inequality for another generation is a lot easier than forcing a stark look at the real culprits that plague our society. “Separate but equal” was easier than confronting integration. Prolonging slavery was easier than the Civil War that ended it. So why not affirmative action? After all, we’ve been doing it for 227 years. What’s another 25?

James N. Markels is a law student at George Mason University.

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