On the evening of Monday, April 12, 2010, the Delaware campus Federalist Society
sponsored an event entitled “The U.S. Constitution and Affirmative Action: The Odd Couple or were they made for each other?” that featured Center for Equal Opportunity President and General Counsel Roger Clegg. Associate Professor Lawrence J. Connell
introduced Mr. Clegg and provided some thoughts of his own on the subject of Affirmative Action.
Mr. Clegg opened his remarks by stating, “I’m going to be speaking today about Affirmative Action. It’s a very emotional subject for a lot of people.” He presented a quick synopsis of early efforts to prevent racial and ethnic discrimination, noting that early efforts at Affirmative Action were about taking “positive steps towards diversification.” He noted that past discriminatory practices by businesses need to be overcome, and that “Something more than just a verbal commitment was necessary.” He noted that these early efforts are not particularly controversial anymore and are also not really a legal issue.
Moving on to the modern conception of Affirmative Action, Mr. Clegg stressed that discrimination does still exist, but he presented a case for why he believes that current Affirmative Action efforts might do more harm than good. He focused specifically on University admissions as an example and described three reasons - the remedial rational, the prophylactic rational, and the diversity rational - often cited for admissions policies that consider racial or ethnic background as a policy. He noted that the U.S. Supreme Court has largely rejected the remedial rational, which justifies such policies by claiming that they right past wrongs; and the prophylactic rational, which essentially relies on the idea that without a protective measure in place admissions policies will automatically be discriminatory. The diversity rational, upheld in the 2003 Supreme Court case Grutter v. Bollinger, states that narrowly tailored policies designed to "to further a compelling interest in obtaining the educational benefits that flow from a diverse student body," were permissible under the equal protection clause of the 14th Amendment.
Noting that America is “a multiethnic and multiracial nation that is only becoming more so,” Mr. Clegg indicated his belief that the costs of admissions policies that give a preference to racial minorities are too high. He claimed that these policies are a form of racial discrimination themselves, create resentment, foster a victim mindset, compromise the academic mission, remove a reason for academic excellence, and paper over the real problems. He went on to say, “It is unhealthy to sort people in an increasingly ethnically diverse country. You stigmatize the very people that you’re supposedly trying to help.” He also equated disadvantage with poverty rather than race and suggested that different policies were need to ensure that any help went to people who truly were disadvantaged.
After some commentary from Associate Professor Connell, who said, “People need to be judged as individuals,” Mr. Clegg took questions from the student audience. Several students expressed agreement with portions of Mr. Clegg’s remarks while rejecting the notion that poverty and disadvantage were necessarily the same. The students stated their belief that because racial discrimination is not a thing of the past, students from a historically disadvantaged ethnic group experience difficulties that are not directly related to income level, and thus Affirmative Action remains necessary. The comments from the students sparked a back and forth discussion, and while disagreements remained, there was nearly universal agreement that addressing inequities in public school educational opportunities needed to be a priority in order to rectify the disadvantages faced by students in poor areas, who are often disproportionately minorities.
A graduate of Yale University Law School, Roger Clegg is the President and General Counsel of the Center for Equal Opportunity, and his work focuses on legal issues arising from civil rights laws including the regulatory impact on businesses and problems in higher education created by Affirmative Action. A former Deputy Assistant Attorney General in the Reagan and Bush administrations, Clegg worked in both the Civil Rights Division from 1987-1991and in the Environment and Natural Resources Division from 1991-93. He held several other positions within the U.S. Justice Department, serving as the Assistant to the Solicitor General from 1985-1987, an Associate Deputy Attorney General from 1984-1985, and Acting Assistant Attorney General in the Office of Legal Policy.