Some commentators have made a good point concerning racial affirmative action, and I want to follow up on it.
They have noted that in Grutter some white students were admitted with lower grades and test scores than some of the minority students who benefited from the "racial plus" factor. Although the opinion did not make clear how this happened, it is probably because these under-qualified white students received "donor" preferences or "alumni legacy" preferences or some similar type of VIP treatment. So if these kinds of preferences are okay, then why aren't affirmative action preferences also okay?
Let's assume a plaintiff walks into our law office and tells us that her application to attend Michigan Law has been rejected even though less qualified students were admitted under alumni, donor and racial preferences. What is our legal advice about the strength of her constitutional claims against these three types of preferences?
What standard of review applies to alumni preferences (i.e. to admission standards that discriminate in favor of children of alumni)?
What standard of review applies to donor preferences?
What standard of review applies to racial preferences?
What is your advice to your client about which claims stand a reasonable chance of success?
Now the "fairness" point--as opposed to the legal point-- is a little bit different. It might go something like this: "Since alumni and donor preferences tend to reward whites as a class, then what's wrong with racial affirmative action preferences that favor non-whites as a class?"
The problem with this kind of reasoning is it ignores the principle that equal protection is an individual right, not a group right. Our client is an individual citizen of the United States, not a representative of her race. Since she has not been admitted to the law school, by definition she has not benefited from the alumni or donor preferences. She has been harmed by all three preferences, and it makes no sense to say that because it is constitutional to harm her by preferences one & two, then it must also be okay to harm her by preference number three as well. In other words, the fact that our client has been harmed by two legal but unfair preferences, does not make it fair to harm her a third time or justify forbidding her from litigating her right to racial equality (and racial fairness) under the EPC. Or am I wrong?
Now, legacy preferences indeed are not fair to those who should have been offered a place in the class based upon the merits. It may well be that colleges and universities should discontinue legacy preferences and thereby open up more seats in the class for applicants of whatever race who merit admission. This might even be a less restrictive means of obtaining more racial diversity in the admitted class of students.
