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78 Tulane Law Review 2061 (2004)


Justice O'Connor’s opinion for the United States Supreme Court in Grutter v. Bollinger upheld the University of Michigan Law School’s affirmative action plan. Beneficiaries of affirmative action clearly meet the necessary qualifications for admissions to selective colleges, universities, and graduate programs. But, the justifications for affirmative action articulated by Justice O'Connor implicitly recognized that underrepresented minorities with a history of discrimination are not as academically qualified as their non-Hispanic white (and Asian counterparts). Their inclusion in affirmative action plans is based on the belief that they provide enough educational and non-educational benefits to offset their academic shortcomings.

There are measurable differences between the average, presumably objective and racially neutral academic credentials of underrepresented minorities with a history of discrimination and non-Hispanic whites (and Asians). But to put the existence of these differences in proper perspective it is important to note that for over five centuries Western societies have pointed to a number of presumably objective, racially neutral and nonbiased explanations for the conclusion that blacks (and people native to the Americas) are intellectually inferior to Caucasians (and to a lesser extent, Asians). The various forms of objective explanations and evidence offered in the past for the belief in the substandard intellectual abilities of blacks, for example, includes the argument that blacks were the victims of a divine curse placed upon human flesh; black skin was an aberrant development caused by being subjected to the inhospitable climate of Africa; intelligence could be determined based on the angle of the face or the shape of the head and that blacks' facial angles or head shapes were a manifestation of a substandard nature; cerebral capacity bore a relationship to intelligence, and because the skulls and the brains of blacks were smaller than those of whites (and Asians), blacks were considered less intelligent. This long uninterrupted history leads to the question: Are racial and ethnic differences currently noted in academic credentials used to determine admissions to selective colleges, universities, and graduate programs merely the latest chapter in the long history of evidence about racial differences that is discarded as the product of intellectual folly by later more enlightened generations?