Testimony on Affirmative Action by Jonathan Bean

Constitutional challenges to racially-exclusive programs

At any rate, Justice Powell introduced racial diversity as one of many factors a school may consider in judging applicants on a case-by-case basis. Powell emphasized that schools could not use race as the sole determinant of “diversity” nor use it in a wholesale manner to treat all members of a minority group differently from nonminorities. In other words, schools cannot reduce the idea of “diversity” to skin color. Unfortunately, this is exactly what universities have been doing!

In subsequent decisions, most notably Croson (1989) and Adarand (1995), the U.S. Supreme Court ruled that all racial preferences are subject to strict judicial scrutiny. States must show how their programs remedy past discrimination by particular state institutions; they may not resort to general claims of overcoming “societal discrimination” (the governing case in this Circuit is People Who Care v. Rockford Board of Education). Furthermore, under the strict scrutiny standard, remedial measures must be “narrowly tailored” to achieve a compelling state interest. Otherwise, they violate the 14th Amendment and the Civil Rights Act of 1964 (Title VII). The courts have ruled that the following reasons are NOT compelling enough to justify racial discrimination by the state:

• Achieving racial proportionalism

• Providing minority role models

• Overcoming general societal discrimination

A strong case could be made that the IMGIP and ICEOP scholarship programs are unconstitutional based on the above case law (the Fourth Circuit Court has struck down similar race-exclusive scholarships). Furthermore, employment discrimination from “targeted hiring” of minority candidates clearly violates Title VII of the Civil Rights Act. If lawsuits have not already been filed, I would encourage concerned citizens to challenge the legality of these racial set-asides.

Even more troubling, these minority scholarship programs require beneficiaries to “seek and accept” faculty positions within the State of Illinois. Do these candidates compete for jobs in open searches (legal) or do they receive jobs set aside for them (illegal)? Many state universities, including my own, have minority recruitment money to provide departments with an “incentive” to interview and hire minority faculty. During budgetary crises, when money is not available for competitive searches, will colleges conduct job searches open only to minorities? The original goal of affirmative action was to enlarge applicant pools, and hence the quality of the finalists, rather than limit them by accepting anything less than the “best-qualified” candidate.

Other forms of “diversity”

Justice Powell’s notion of diversity was not exclusively racial; he was concerned with allowing universities to consider many factors to achieve intellectual diversity. But by focusing monomaniacally on race, universities have overlooked other groups that are severely underrepresented on college faculty, thus giving lie to their professed concern for “diversity.” For example, faculty surveys highlight the near-absence of Republican and/or conservative faculty in the arts and humanities. For the shocking figures, see