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Why Racial Preferences Are Wrong

    Proponents of racial preferences generally argue that such preferences should be allowed where the goals of the government program are benign and the program is designed to help disadvantaged groups.  However, the issue is not whether the motives of the institution are benign, or even whether “historically disadvantaged” groups benefit from the challenged program, but whether individuals are unlawfully subjected to racial classifications.

    The United States Constitution provides that, “No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.”  Fourteenth Amendment, U.S. Constitution.  Some State constituitions go even further in protecting individual rights.  For example, drawing on California’s long experience with discrimination, much of it aimed at Asian Americans, the California Constitution provides that, “the State shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.”  Art. I, Sec. 31, California Constitution.

   The United States Constitutution protects individuals, not groups.  As the Supreme Court has repeatedly emphasized, the “rights created by the first section of the Fourteenth Amendment are, by its terms, guaranteed to the individual.” Shelley v. Kraemer, 334 U.S. 1, 22 (1948). Thus, as the Supreme Court declared in its landmark decision in Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995), there are no “benign” racial classifications. “[T]he Fifth and Fourteenth Amendments to the Constitution protect persons, not groups. It follows from that principle that all governmental action based on race . . . should be subjected to detailed judicial inquiry to ensure that the personal right to equal protection of the laws has not been infringed.” 515 U.S. at 227.

   As the United States Supreme Court has explained, “Classifications of citizens solely on the basis of race ‘are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality.’” Shaw v. Reno, 509 U.S. 630, 643 (1993) (quoting Hirabayashi v. United States, 320 U.S. 81, 100 (1943)). Use of race “threaten[s] to stigmatize individuals by reason of their membership in a racial group and to incite racial hostility.” Shaw at 643.  "One of the principal reasons race is treated as a forbidden classification is that it demeans the dignity and worth of a person to be judged by ancestry instead of his or her own merit and essential qualities."  Rice v. Cayetano, 528 U.S. 495, 517 (2000).

    The "dirty little secret" behind every program of preferences is that, in order to provide preferences to individuals of one group, individual of other groups must be "disfavored."  In College admissions, the burden of affirmative action programs falls heaviest on individual applicants identified as "Asian American."  See Thomas J. Espenshade, Chang Y. Chung, The Opportunity Cost of Admission Preferences at Elite Universities, Social Scient Quarterly (Vol. 86, No. 2, June 2005).  At some universities, 4 out of 5 positions awarded to "minorities" under affirmative actions programs would otherwise have gone to Asian American students.  Id. at 303-304.  This practice is wrong on several levels: it arbitrarily classifies students from a wide range of ethnicities and backgrounds as "Asian American"; and it discriminates against individuals, who have a constitutional right to be considered as individuals, not as faceless members of a "race."  

    Furthermore, unless the program of preferences is necessary to restore infringed constitutional rights, even those person supposedly "benefited" by the program are, in fact, harmed in that their right to be free from racial classifications has been violated.  That is, constitutional injury is caused by imposition of the classification itself.  As the United States Supreme Court explained in a case in which a city classified contractors by race, “The ‘injury in fact’ in an equal protection case of this variety is the denial of equal treatment resulting from the imposition of the barrier, not the ultimate inability to obtain the benefit.” Northeastern Fla. Ch. Of Assoc. Gen. Contractors of America v. City of Jacksonville, 508 U.S. 656, 666 (1993). 

    Because of the harm caused individuals by imposition of racial classifications,  all programs classifying individuals by race must be examined under "strict scrutiny." Under this legal standard, there is a presumption that any governmental classification by race and gender is a violation of the Fourteenth Amendment’s guarantee of the “equal protection of the laws.” Such a program will be allowed by courts to continue only if it is "narrowly tailored" to address a "compelling government interest," such as de jure, or intentional, segregation by the institution in question.  See Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995).  This justification for imposition of racial/gender preferences is rarely present.

    In short, racial classifications by their nature demean and harm individuals, and are thus presumptively unlawful.  See Connerly v. State Pers. Bd., 92 Cal. App. 4th 16, 33, 36 (2001).  Classifications by gender are similarly “suspect,” because, “[s]ex, like race and lineage, is an immutable trait, a status into which the class members are locked by the accident of birth.”  Sail’er Inn, Inc. v. Kirby, 5 Cal. 3d 1, 17 (1971); see Bobb v. Municipal Court (People), 192 Cal.Ap.3d 860, 192 Cal. Rptr. 270, 272 (1983). 

    The wisdom of a standard which considers all race/gender classifications inherently suspect is demonstrated by the long history of Asian Americans in this country.  In every instance in which group identity was elevated above individual rights, individuals suffered discrimination.  And, in case after case where Asian Americans faced racial discrimination, some of it well-intentioned and supported by the "public policy" of the times, their rights were vindicated only by strict application of the laws protecting individual rights.  That lesson is no less valid today.

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