Roger Clegg, vice president and general counsel of the Center for Equal Opportunity, spoke to about 30 University community members about the use of race as a factor in admissions last night in an event sponsored by the Jefferson Leadership Foundation, Students for Individual Liberty and the Virginia Advocate.
The CEO released a study last January stating that Virginia colleges and universities discriminate based on race when admitting students. One of the statistics included in the report was that black students who have the same SAT scores as white students are 45 times more likely to be accepted into the University.
Clegg started out by saying that affirmative action as described by President John F. Kennedy in the 1960s is defined properly as "taking aggressive steps to get rid of discrimination."
Clegg said the original intent of affirmative action was "laudable" and "should be done" now.
He said affirmative action should consist of aggressive recruiting policies that inform everyone about their rights to apply to a particular institution.
He added that the current debate about the meaning of affirmative action is whether it is justified to use race or ethnicity in deciding who should be accepted at schools.
Clegg said his view is that race as a factor in admissions is not defensible in a court of law.
Clegg said no one can state that "everyone who gets into the University of Virginia is qualified.
"The question is not only if everyone here is qualified, but if they are the best qualified," he said.
Clegg outlined three "classes of justification" for race-based admissions, which he said are used by affirmative action advocates.
The first is a "prophylactic measure," meaning that using race in admissions is necessary to prevent discrimination against certain groups.
Clegg said the University has been "cheerfully and systematically awarding points" to black and Hispanic students.
The second category of defense for using race in admissions was "remedial justification," which means that discrimination in the present is justified because "in the past African-Americans were discriminated against," he added.
Clegg said this is not justifiable because the "focus needs to be on individual students."
The students receiving admission are "17 or 18 year olds, not former slaves, not people born in the Jim Crow era," he said.
He defined the third class of justification for using race in admissions as maintaining diversity in the student body.
He added that this justification is unfair because it "assumes that intellectual diversity can be achieved with crude racial stereotypes."
Clegg said beyond these three justifications, the costs of using race to determine admission need to be examined.
"First and most important, you have sacrificed the principle of non-discrimination ... everyone loses," he said.
Byron Smith, president of Students for Individual Liberty, agreed with Clegg that using "skin color" as an admissions factor is wrong.
"Using race as a yardstick is completely unfair - people have no control over what race they are," Smith said.
Clegg said another disadvantage of using race in the admissions process is that certain student groups might be looked upon as underqualified by the rest of the student body.
These "people are going to be assumed to have gotten in under a lower bar," he said.
He added that it was "distressing" to see the "gyrations" that some institutions such as the University are going through to maintain a policy that he says is legally indefensible.
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