The Flawed Prescription: A Legal Scholar’s Journey Beyond Affirmative Action

For more than two decades, my life as a legal scholar was intertwined with the defense of affirmative action. I authored papers, contributed to amicus briefs, and argued in public forums that these policies, while perhaps imperfect, were a necessary tool to remedy the deep, septic wounds of historical injustice in the United States.¹ I believed in the diagnosis—that systemic discrimination had created profound inequality—and I accepted the prescribed treatment: the conscious use of race to foster opportunity.

Yet, over time, a quiet but persistent cognitive dissonance began to grow. The public arguments I made with conviction stood in stark contrast to the troubling evidence my private research uncovered. I was defending a policy designed to advance equality that was, in practice, creating new and insidious forms of discrimination.⁴ I was championing a policy meant to heal a divided nation that was, in fact, sowing fresh acrimony and tension.⁶ I was advocating for a policy intended to empower the marginalized that was, in some of the most critical cases, harming its intended beneficiaries.⁷

This slow-burning crisis of conscience reached its tipping point several years ago. I was reviewing materials related to a university admissions case, years after having co-authored a brief extolling the “educational benefits of diversity” for a similar institution. In those materials, I encountered the profile of a young Asian American student. His academic record was near-perfect, a testament to years of discipline and sacrifice. His application was rejected. His story, and others like it—the stories of Michael Wang, who was denied entry to his dream schools despite a stellar resume, and Abigail Fisher, who sued after being rejected by the University of Texas—forced a painful reckoning.⁹ My abstract legal arguments, crafted in the sterile environment of a law library, had a tangible human cost. The well-intentioned legal architecture I had helped maintain had contributed to a system that judged this young man not by his character or his remarkable achievements, but by his ancestry. It was a professional and ethical breaking point.

This crisis forced me to abandon my old framework. The real epiphany came when I stopped thinking of affirmative action as a moral imperative and started analyzing it as a powerful social medication. The “disease” is historical and systemic inequality—a correct diagnosis.¹¹ The “prescription” is race-conscious preference. The problem, I came to realize, is that this prescription has been administered for over 50 years with a host of severe, unlisted side effects that its manufacturers—policymakers and the courts—have consistently downplayed. This report is the result of my investigation into those side effects. It argues that affirmative action, however laudable its goals, is a flawed prescription. It is constitutionally incoherent, demonstrably harmful to both its beneficiaries and others, and ultimately undermines the very principles of fairness and individual merit it ought to uphold. It is time to stop treating the side effects and find a better cure.

Side Effect: Constitutional Incoherence and the Betrayal of Equality

The most fundamental side effect of affirmative action is that it is toxic to the foundational principles of the U.S. Constitution. The policy’s legal justifications have always been unstable because they require the law to contradict its own core promise: equal protection for every individual.

The Bedrock Principle: The Fourteenth Amendment’s Promise

Ratified in 1868 in the aftermath of the Civil War, the Equal Protection Clause of the Fourteenth Amendment was intended to do one thing with absolute clarity: stop states from discriminating against Black Americans.¹³ Its text, however, establishes a principle that is universal and profound. It does not protect groups; it protects individuals. The clause guarantees “to any person within its jurisdiction the equal protection of the laws”.¹³ This created a constitutional mandate for a colorblind society, one in which the government is prohibited from classifying citizens by race and treating them differently on that basis.¹⁵ This was the clear ideal that animated the Civil Rights Movement, a dream of a nation where individuals would be judged by the content of their character, not the color of their skin—a dream betrayed by the mechanics of race-conscious programs.⁶

The Pathology of “Benign” Discrimination

Affirmative action created a legal paradox. To remedy the effects of past discrimination, the policy required the state to engage in the very act the Constitution forbids: classifying and treating citizens differently based on race.¹⁶ This is the essence of what opponents have termed “reverse discrimination”—discrimination against members of a majority or historically advantaged group in favor of a minority or historically disadvantaged one.⁵

Proponents argue that the intent is “benign,” but the mechanism is functionally identical to the invidious discrimination the Fourteenth Amendment was designed to eradicate.⁴ Any act of inclusion based on race is, by definition, also an act of exclusion based on race.¹⁷ This logic leads to fundamentally unfair and arbitrary outcomes, such as the scenario where the under-qualified son of an affluent Black doctor might displace the highly qualified daughter of a Vietnamese boat refugee.⁶ Such an outcome cannot be reconciled with any coherent principle of individual justice. The legal framework for affirmative action was not merely flawed; it was self-contradictory. It asked the government to use a tool—racial classification—that the Constitution had explicitly forbidden. This internal conflict made its eventual collapse all but inevitable.

The Supreme Court’s Shifting Prognosis: A 50-Year Struggle with a Flawed Premise

The history of affirmative action in the Supreme Court is a 50-year chronicle of the judiciary attempting, and ultimately failing, to stabilize this inherently unstable doctrine.

The shift in legal justification from remedying past discrimination to achieving “diversity” was not a principled evolution but a strategic retreat. Early arguments for affirmative action were explicitly remedial.¹¹ However, the Supreme Court rejected “remedying societal discrimination” as a compelling interest because it was too amorphous and lacked a logical endpoint, potentially justifying racial preferences in perpetuity.¹⁴ It was Justice Lewis Powell’s 1978 opinion in

Regents of the University of California v. Bakke that introduced “student body diversity” as a constitutionally permissible goal, linking it to academic freedom and the First Amendment.¹⁹ This became the only viable legal defense, forcing proponents to frame the policy around the educational benefits of diversity.²⁰ This created a new contradiction: if the goal was truly diversity of thought, then using race as a proxy was crude and stereotypical, a point that would ultimately prove fatal to the doctrine.

Case (Year)	Key Question	Majority Ruling	Significance/Impact on Doctrine
Regents of Univ. of California v. Bakke (1978)	Are rigid racial quotas in university admissions constitutional?	Racial quotas are unconstitutional. However, race can be considered as one “plus” factor among many in a holistic review to achieve student body diversity.	Established the “diversity” rationale as the only compelling interest for using race in admissions; banned quotas but allowed for a limited, flexible use of race.21
Grutter v. Bollinger & Gratz v. Bollinger (2003)	Can universities use race to achieve a “critical mass” of minority students?	Upheld the use of race in a holistic, individualized review (Grutter). Struck down a mechanistic point system that automatically awarded points for race (Gratz).	Affirmed diversity as a compelling interest but signaled deep discomfort with overt racial calculation. Famously included a 25-year expectation for the policy’s end.22
Fisher v. University of Texas (2016)	Must a university prove that workable race-neutral alternatives were inadequate before using race?	Upheld the university’s policy but reinforced that the institution bears the burden of proof under strict scrutiny to show that race-conscious admissions are a last resort.	Narrowed the application of Grutter, demanding a more rigorous justification from universities and signaling a less deferential judicial stance.19
Students for Fair Admissions v. Harvard/UNC (2023)	Does the use of race in college admissions violate the Equal Protection Clause?	Yes. The admissions programs at Harvard and UNC violate the Equal Protection Clause by failing strict scrutiny, using race as a negative stereotype, and lacking a logical endpoint.	Effectively ended race-based affirmative action in college admissions, restoring the principle that “eliminating racial discrimination means eliminating all of it”.19

The 2023 decision in Students for Fair Admissions v. Harvard was not a radical departure but the logical conclusion of this half-century struggle. Chief Justice John Roberts, writing for the majority, found that the stated goals of diversity were too vague and immeasurable to satisfy the rigorous demands of strict scrutiny.¹⁹ The evidence presented in the case demonstrated that race was being used not as a mere “plus,” but as a determinative factor and, in the case of Asian Americans, a clear negative.²⁵ The Court did not invent a new principle; it restored the original one. It revoked the license for a constitutionally incoherent treatment.

Side Effect: Harm to the Intended Beneficiaries

Perhaps the most tragic irony of affirmative action is that this powerful medication, intended to heal, often inflicts harm on the very patients it is meant to help. The policy creates a cruel catch-22 for its beneficiaries: their successes are discounted as the product of preference, while their struggles are seen as proof of their unworthiness.

The Stigma of Implied Inferiority

When it is widely known that selection processes are not race-neutral, a “stigma of incompetence” attaches to the beneficiaries.⁷ The mere existence of the policy raises the unavoidable question of whether an individual was chosen for their demographic characteristics rather than their qualifications.²⁶

This stigma manifests in two ways. First is external stigma, where peers, professors, and colleagues may doubt the abilities and achievements of beneficiaries.²⁷ This is not a theoretical concern. One student at Amherst College recounted the painful experience of a floormate screaming that minority students were “idiots” before turning to her and calling her an “exception” who “actually deserved to be here”.²⁸ This sentiment strips individuals of their hard-won accomplishments, reducing them to tokens in a demographic calculus.

Second, and perhaps more damaging, is internal stigma. Beneficiaries themselves can internalize this doubt, leading to performance anxiety, stereotype threat, and a diminished sense of self-worth.⁷ Justice Clarence Thomas has spoken powerfully about his experience at Yale Law School, where he felt the constant need to “prove himself every day” to overcome the assumption that he was an affirmative action admit.³⁰ This psychological burden is a profound and debilitating side effect. A policy cannot tell a group of people they require special assistance to compete without simultaneously implying that they are incapable of competing on equal terms.³¹

The “Mismatch” Hypothesis: Setting Students Up to Fail

Beyond the psychological harm of stigma is the academic harm of “mismatch.” The mismatch hypothesis posits that when affirmative action places students in academic environments where their preparatory credentials (like test scores and high school GPA) are significantly below the median for that institution, it can lead to negative outcomes.³²

The theory is not about a student’s innate ability, but about proper placement. A student who might have thrived as an engineering major at a strong state university could be set up for failure when placed in a hyper-competitive STEM program at an elite institution where the pace and assumed prior knowledge are far beyond their preparation.³⁴ The result is often demoralization, low grades, switching to a less rigorous major, or dropping out entirely. The “opportunity” is not merely about gaining access to an elite campus; it is about having a genuine chance to succeed and graduate in one’s chosen field. Mismatch theory suggests that by prioritizing institutional prestige over academic fit, affirmative action can deny students this more meaningful form of opportunity.

The most compelling evidence for this phenomenon comes from the work of legal scholar Richard Sander. His 2004 analysis of law school data suggested the startling conclusion that mismatch might actually reduce the total number of Black lawyers by placing students in schools where they were less likely to succeed and ultimately pass the bar exam.⁸ While the debate over mismatch is ongoing, a significant body of research confirms the effect, particularly in demanding STEM fields, where mismatched students are far more likely to switch majors or leave the field altogether.³⁵ This is a direct, quantifiable harm caused by an admissions system that prioritizes demographic targets over individual academic readiness.

Side Effect: The Erosion of Meritocracy and Social Trust

The final, and perhaps most corrosive, side effect of affirmative action is the damage it inflicts on the broader social fabric. By supplanting the principle of individual achievement with a system of group preference, it undermines the ideal of meritocracy, creates justifiable resentment, and erodes the social trust that binds a diverse society together.

Merit Under Siege: Replacing Achievement with Ancestry

A core promise of a liberal, democratic society is meritocracy—the idea that individuals should rise or fall based on their own talents, efforts, and achievements, not on the circumstances of their birth.³⁶ Affirmative action is a direct assault on this principle. It explicitly makes race and ethnicity—which are traits, not achievements—a formal criterion for advancement in the competitive arenas of education and employment.⁶ This elevates group identity over individual merit and sends the corrosive message that who your ancestors were is more important than who you are.¹⁷

By creating an official system of group preference, the policy encourages citizens to view themselves not as individuals in a common enterprise, but as members of competing racial blocs. This incentivizes grievance politics, where groups organize and litigate based on identity to secure a larger share of a fixed pie, as seen in the rise of organizations like Students for Fair Admissions.²⁵ Instead of moving society toward a post-racial ideal, affirmative action deepens racial consciousness and becomes a source of “acrimony and tension instead of healing”.⁶

The Zero-Sum Game and the Unfair Burden

Admissions to elite universities and desirable jobs are zero-sum games. A spot given to one applicant cannot be given to another.⁶ The evidence is now undeniable that affirmative action policies systematically disadvantage highly qualified applicants from specific groups, most notably Asian Americans. The data from the

SFFA v. Harvard lawsuit revealed that Asian American applicants were held to a significantly higher academic standard and were consistently rated lower on subjective “personality” scores, a metric that appeared to be used to justify their rejection despite superior objective credentials.²¹

This is not an abstract injustice. It is felt deeply by students who, after years of hard work and sacrifice, are told that their achievements matter less than their race. Personal accounts from Asian American students describe the immense pressure of having to be not just the best student, but the “best Asian” to have a chance.³⁸ This systemic penalty is made even more galling by the fact that the policy primarily benefits the most privileged members of underrepresented groups, not the truly disadvantaged. Research has shown that affirmative action beneficiaries at elite institutions are often from middle- and upper-class backgrounds.⁶ The policy thus creates scenarios where the child of a Black surgeon is given preference over the child of a Cambodian refugee, a moral and logical absurdity that destroys faith in the fairness of our institutions.

The scale of this preference is not trivial. Studies have quantified the admissions boost as being equivalent to hundreds of SAT points, making the thumb on the scale a heavy one indeed.³⁴ When a system so blatantly deviates from the principle of equal opportunity, it is no surprise that it breeds resentment and erodes social trust.

A Better Treatment Plan: Prescriptions for Genuine Opportunity

To abandon a flawed prescription is not to abandon the patient. Rejecting race-based affirmative action does not mean ignoring the disease of persistent inequality. It means we must commit to a better, more effective, and less harmful course of treatment. This requires shifting our focus from engineering results at the end of the race to ensuring everyone has a fair chance at the starting line.

Treating the Disease, Not Just the Symptoms

Affirmative action is a “downstream” solution to an “upstream” problem. It attempts to cosmetically alter the demographic composition of elite institutions without addressing the root causes of educational and economic disparities that begin in early childhood.¹¹ A genuine commitment to equality requires systemic, upstream investments in quality K-12 education, school choice, and robust support for families in underserved communities.

Evaluating Alternative Therapies: Race-Neutral Approaches

In the wake of the Supreme Court’s 2023 decision, institutions are turning to race-neutral alternatives. While preferable to the constitutional harms of racial preferences, these too are imperfect solutions.

• Socioeconomic-Based Preferences: This approach targets disadvantage directly, using factors like family income and parental education level. It has broader public support and aligns better with principles of fairness.⁴¹ However, because the majority of low-income Americans are white in absolute numbers, simulations consistently show that class-based preferences alone are far less effective at producing racial diversity than race-based policies.²⁰
• “Percentage Plans”: Policies like the Texas Top 10% Plan guarantee admission to state universities for top graduates from every high school.²⁰ Their effectiveness, however, relies on the continuation of de facto racial segregation in high schools. Furthermore, studies show they are not effective at increasing minority enrollment at the most selective flagship universities, which are the primary focus of the affirmative action debate.²⁰

These alternatives are better medications, but they are not a cure. They still fail to address the core issue of creating genuine opportunity for all individuals.

A New Framework: Opportunity-Based Equalization

A more robust and principled approach must move beyond preferences entirely and recommit to a system of individualized merit. Such a framework would include three core components:

1. Radical Transparency and the End of Hidden Preferences: The first step is to level the playing field by abolishing all non-merit-based advantages that disproportionately benefit the wealthy and connected. This means ending legacy preferences and undue advantages for recruited athletes, practices that overwhelmingly favor affluent white applicants.²⁰
2. Opportunity-Weighted Admissions: Instead of a “plus” for race, admissions and hiring decisions should give a “plus” for overcoming quantifiable adversity. A holistic review should weigh an applicant’s achievements against the opportunities they have had. This could involve creating a metric based on factors like neighborhood poverty, school quality, family income, and first-generation status. This is not a departure from merit; it is a more accurate way of measuring it.
3. Systemic Upstream Investment: Institutions must partner with and invest in underserved communities. This includes robust financial aid, mentorship programs, and strong academic support services to ensure that admitted students from disadvantaged backgrounds are equipped to thrive, not just survive.⁴⁷

A New Hippocratic Oath for a Just Society

The 50-year experiment with race-based affirmative action is over. For decades, we administered a powerful drug with noble intentions, but its side effects have proven too severe. It violates the constitutional promise of individual equality, it risks harming the very people it is meant to help, and it corrodes the social trust that underpins a merit-based society. The Supreme Court’s decision in Students for Fair Admissions v. Harvard was not an act of malice; it was the medical board finally revoking the license for a failed and harmful treatment.

Our challenge now is not to mourn the loss of a flawed prescription, but to rededicate ourselves to curing the disease of inequality itself. This requires moving beyond the divisive logic of group preferences and recommitting to the foundational American promise: a society where every individual, regardless of their background, has a genuine opportunity to rise on the strength of their own character, effort, and achievement. For the health of our body politic, we must adopt a new Hippocratic oath: first, do no harm. And race-based affirmative action has done too much harm for too long.

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