Two recent citizen complaints received by the legal office of the Department of Education, Enclosure One and Enclosure Two, have raised different issues regarding discriminatory effects of college admission criteria. The purpose of this discussion is to identify the points and issues raised by these complaints, discuss the constitutional basis for preferential criteria based on past discrimination, and examine the degree to which affirmative action policies can be supported in the contemporary legal and political environment.
Colleges, both private and public, use a wide variety of criteria in selecting among candidates for admission. Some of these criteria are overtly directed at race, and give preference as a means of redressing past discrimination. Others are overtly nonracial, but nevertheless have the effect of preferentially advantaging members of one racial group often the dominant racial group, whites.
Preferences of both sorts have been separately challenged in the two citizen complaints, Enclosures One and Two. The writer of Enclosure One argues, criticizing racial preferences for scholarships, that "there are poor children of every race." In contrast, the writer of Enclosure Two is concerned about the "legacy" policies of private colleges, the widespread practice by which the children of alumni are given preference in admission. This practice automatically favors children of parents who as alumni (and therefore college graduates) occupy an advantaged position in life. In the writer's expression, "we can't keep favoring those who already were born with a head start."
It is ironic that the public debate swirls around the issue of racial preferences, addressed by Enclosure One. A preference which favors blacks attracts all the attention and criticism. The range of preferences (such as the "legacy" preference) which favor whites are benignly ignore. This unbalance of concern should i...