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The court's twin rulings on Michigan's law and undergraduate schools' admissions policies essentially declare that "higher education must be accessible to all individuals regardless of race or ethnicity," but that a point system used to achieve this accessibility is just as illegal as the outright quota system the court struck down twenty-five years ago. The court says that racial preferences are a good thing, but a systematic approach to racial preferences is bad.
The court's ruling, while certainly well-intentioned, will lead to (at best) unnecessary inefficiencies and (at worst) the very sort of arbitrary judgments based on skin color that many people wish to avoid. Any large and/or prominent institution must resort to some sort of system to screen applicants, at least in the initial stages. Forcing them to avoid a numerical system when judging applicants, and yet make themselves "accessible," will force those institutions to become bogged down in giving lengthy consideration to anyone who happens to apply. And, for elite institutions especially, that consideration will be undue in the vast majority of cases. The diversity of student bodies (and, by extension, society as a whole) will suffer as admissions officers who have spent an inordinate amount of time studying applications that should have been rejected outright are forced to make more snap judgments of the remaining applicants and ignore their more subtle qualities. More blacks and other minorities will be accepted just because they're in the minority, and more whites will be rejected just because they're not in the minority.
There is a better way. It's no secret that many minorities, especially those that have been the targets of traditional affirmative action, are skewed towards the lower reaches of the economic bell curve (which, of course, has always been one argument for affirmative action). According to the Census Bureau, forty-three percent of African-American households had an income of less than $25,000 in the year 2000 (compared to twenty-seven percent of white households). Having an income less than this $25,000 threshold puts a family in the bottom thirty percent of all American households. Instead of giving African-Americans twenty points out of a possible 150 because of the color of their skin, the University of Michigan could have awarded all applicants one point for every fifth percentile their parents are from the top rung of the economic ladder (i.e., those in the bottom thirty percent would get twelve points; those in the bottom five percent would get twenty). Under this new system of affirmative action, almost half of potential applicants to Michigan who also happen to be black would get the same twelve points that anybody with a perfect SAT score would receive. Not only this, but the child of Vietnamese "boat people" living in an L.A. ghetto and the child of an unemployed Appalachian coal miner would also get consideration for the stultifying effects of their environments.
As with any new system, those who have benefited from the old system will object. Affluent blacks have the most to lose from a reform of affirmative action: many would lose the compensations that many of them would be the first to admit have made their affluence attainable. But reform is needed, for the negative effects of race-based affirmative action are just as insidious as the racism it was designed to combat. When certain minorities graduate from certain institutions, others don't necessarily see personal achievement; they often see reason for resentment.
One argument for economic affirmative action is that it is perpetually sustainable. Despite the best efforts of persons such as Marx and Lenin, class divisions will always exist: there will always be the haves and the have-nots, even if the degrees of disparity ebb and flow. Throughout history, racial, ethnic, and religious groups have had a habit of falling in and out of economic favor, often through no fault or virtue of their own (witness, for example, the discrimination against ethnic Russians in the former Soviet Republics). It would be best to have a permanent system in place that, it could be argued, will help today's powerful when they become tomorrow's powerless.
Naturally there are those who would game such a system of affirmative action. It's already clear that admissions officers would have to examine tax returns going back many years to weed out those who became paupers on paper in order to get a leg up on their admission chances to Harvard. But such a system is infinitely better than a system of hypocrisy that judges by the color of one's skin because others judge by the color of one's skin. Perhaps a minority applicant would stand a bit shorter in the eyes of a color-neutral system of affirmative action, but it would be on his or her own two feet.