Affirmative Action And The “Individual” Right To Equal Protection

Abstract

When the Supreme Court, or one its Justices, writes an opinion invalidating a race-conscious affirmative action program, it is commonplace for the opinion to note that the rights protected by the Equal Protection Clause are “individual” or “personal,” and thus require the state to treat every person as an individual, not simply as a member of a class. This assertion about the nature of equal protection rights is assumed to be inconsistent with the classbased underpinning of affirmative action programs, and thus determinative of their invalidation. The problem with affirmative action programs, under this view, is that they ignore the individual characteristics of the persons affected and instead assign different treatment to persons based on their membership in a class. If, for example, the University of California Medical School at Davis assigns a certain number of seats in its entering class to black, Chicano, Asian, and Native-American applicants,2 it has made overly broad assumptions about the characteristics of the members of those classes, and then assigned a benefit on the basis of class membership without regard to individual merit or accomplishment.