Affirmative Acting

Great stuff on Plastic regarding the constitutionality of affirmative action:

Generally, when the subject of affirmative action comes up, pundits from both sides confuse the argument over whether these programs are a good idea and whether they are constitutional. Some good things are unconstitutional and that some bad things are constitutional. Clearly, any government agency which uses the race of the applicant, for good or bad, is unconstitutional (this opinion is contrary to rulings from the SCOTUS).

and

You are conflating two completely different things here: lack of affluence, and being non-white. Given two candidates with equal ability, but one is white “trailer trash” and the other is from a middle class black family, which should be encouraged through affirmative action? I would say the former; AA says the latter. That is racism, pure and simple.

Before we can get to whether the 14th Amendment should be given any effect, the Supreme Court has to determine that the university should be deemed to be subject to the same rules as the federal government, either based on a broad interpretation of the commerce clause or on the fact that the private university takes public funds (for a variety of purposes, including research).

and

Just because a person is Black or Hispanic does not mean they are disadvantaged. If UofM’s system were based on the median income in the applicant’s community or the family income as compared to the mean for a region it would make a hell of a lot more sense. The advantages which really at one time did apply to only white applicants are much more closely correlated to poverty than race.

I feel sort of dumb – I’d never stopped to explore the idea that ‘good things’ can be unconstitutional. That affirmative action has some merit in practice but it is, by definition, against the 14th Amendment.