A Preferable Way to Treat Preferential Treatment


This Comment advocates for a particular definition of “preferential treatment.” On April 22, 2014, the U.S. Supreme Court held that the State of Michigan’s constitutional amendment forbidding preferential treatment based on race or gender was consistent with the U.S. Constitution. The case was Schuette v. Coalition to Defend Affirmative Action. The amendment, known as Proposal 2, has effectively banned affirmative action in Michigan, policies that favor minority representation in higher education. While both sides passionately argued whether Proposal 2 is constitutional, no one offered a detailed explanation of what exactly preferential treatment means.

This Comment argues for an intrinsic/extrinsic test in the context of higher education. An intrinsic quality is one that is valuable in and of itself to a university (such as leadership, initiative, and eagerness to learn). Extrinsic qualities are all other qualities that contribute to or are evidence of intrinsically valuable qualities to universities. For example, being captain of the high school soccer team may not be inherently valuable to a university, but qualities displayed by being a captain, such as leadership, can have such value. Hence, being a captain is an extrinsic quality that provides evidence of leadership, which is the intrinsic quality. Under my definition, granting preferential treatment based on race means considering race as an intrinsic quality. Thus, under Proposal 2, universities can no longer consider race as a plus factor in and of itself but can consider race extrinsically if a candidate’s race contributed to activities that demonstrate other inherently valuable qualities. This definition is narrower than what the drafters of Proposal 2 intended, but a broader interpretation advocating complete race-blind admissions methods would be exceedingly impractical and potentially unconstitutional. This Comment argues that the Court in Schuette rightly upheld Proposal 2 as constitutional so long as preferential treatment is defined as narrowly as I have suggested. If preferential treatment is defined by the intrinsic/extrinsic test, universities can still consider an applicant’s race extrinsically, thereby providing a small victory for affirmative action advocates.

About the Author

Alex Akhavan, J.D. Candidate, UCLA School of Law Class of 2015, is an editor for the UCLA Law Review’s online publication, Discourse.

By uclalaw