FORUM

When the Supreme Court issued the intensely anticipated decisions in the University of Michigan cases, Grutter v. Bollinger and Gratz v. Bollinger, many of us who were wary of the Court’s position on affirmative action found much to applaud in the Court’s opinions. For the first time since Regents of Univ. of Calif. v. Bakke, in 1978, the U.S. Supreme Court reaffirmed the constitutionality of race-conscious admissions in higher educational programs. In its ruling, the Court in Grutter (5-4), left no doubt that it adopted Justice Powell’s pivotal opinion in Bakke, in which diversity in higher education was found to constitute a compelling state interest. As Justice O’Connor wrote, “[T]oday we endorse Justice Powell’s view that student body diversity is a compelling state interest that can justify the use of race in university admissions.”

Moreover, the Court issued an unequivocal pronouncement on the importance of racial and ethnic diversity in higher education and to the society at large. In this regard, Justice O’Connor stated in Grutter, “In order to cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity.” Such strong recognition of the governmental interest in racial and ethnic diversity is a salutary development in the ongoing struggle for inclusion throughout American society, including in institutions of higher learning.

Nevertheless, there are questions and areas of concern raised by the Court’s opinion which may impact the future of affirmative action and the goal to end racism in American society. These areas are discussed below.

I.

First, as an overarching matter, the Court limited the debate on affirmative action to the diversity rationale. This is understandable, of course, as this was the sole basis upon which the University of Michigan justified its admissions programs. The University based its defense on the prerogative of colleges and universities to determine the manner in which the educational mission was accomplished. The exercise of this prerogative included admissions decisions designed to achieve a highly qualified and diverse student body population for the individual and collective educational enterprise. Justice O’Connor accepted this rationale without reservation, and found no contradiction between the University’s goal of academic excellence and racial and ethnic diversity. She stated, “[T]he Law School’s race-conscious admissions program adequately ensures that all factors that may contribute to student body diversity are meaningfully considered alongside race in admissions decisions. With respect to the use of race itself, all underrepresented minority students admitted by the Law School have been deemed qualified.”

Yet, by giving scant attention to the social inequities that generate the need for affirmative action programs in the first instance, the Court virtually absolves governmental and other societal institutions of the responsibility to eradicate racial and economic injustice at the heart of disparate and discriminatory treatment in education and throughout American society in a systematic way. Justice O’Connor’s recognition of these underlying issues is brief. Finding that a “critical mass” of students of color is not tantamount to a quota system, she notes in Grutter:

[D]iminishing the force of such stereotypes is both a crucial part of the Law School’s mission, and one that it cannot accomplish with only token numbers of minority students. Just as growing up in a particular region or having particular professional experiences is likely to affect an individual’s views, so too is one’s own, unique experience of being a racial minority in a society, like our own, in which race unfortunately still matters.

She also observes that racial inequality may account for disparate educational and societal experiences between students of color and white students, noting that “[B]y virtue of our Nation’s struggle with racial inequality, [minority students] are both likely to have experiences of particular importance to the Law School’s mission, and less likely to be admitted in meaningful numbers on criteria that ignore those experiences.” However, as the amicus brief filed by the Society of American Law Teachers (and briefs filed by interveners on behalf of students of color) argued, such racial justice concerns warranted fuller direct attention by the Court. As SALT demonstrated in our brief, deliberate governmental policies in the State of Michigan led to residential segregation, discrimination in primary, secondary and higher education, and employment discrimination. In addition, the University’s reliance on the LSAT, with its cultural, gender, and economic biases, had a disparate impact on minority students seeking admission to the state university. For these reasons, SALT urged the Court to incorporate these salient arguments regarding racial disparity and injustice into its decision.

In large measure, such concerns were ignored, with the notable exception of Justice Ginsburg’s concurring opinion. Where Justice O’Connor is indirect, Justice Ginsburg is straightforward:

It is well documented that conscious and unconscious race bias, even rank discrimination based on race, remain alive in our land, impeding realization of our highest values and ideals. . . As to public education, data for the years 2000-2001 show that 71.6% of African-American children and 76.3% of Hispanic children attended a school in which minorities made up a majority of the student body. . . And schools in predominantly minority communities lag far behind others measured by the educational resources available to them.
However strong the public’s desire for improved education systems may be . . . it remains the current reality that many minority students encounter markedly inadequate and unequal educational opportunities. Despite these inequalities, some minority students are able to meet the high threshold requirements set for admission to the country’s finest undergraduate and graduate educational institutions.

The general absence of the discrimination claims in the Court’s opinion helps to further embed factors such as geographical and residential location, status as offspring of alumni, racially segregated and under-resourced secondary schools, availability (or lack thereof) of advanced placement courses, and over-reliance on standardized testing, as non-neutral racially disparate determinants of admission to institutions of higher learning. Inevitably, these issues will be raised in future considerations of affirmative action, so long as disproportionate poverty levels within Native American, Latina/o, African American, and several Asian American communities persist. For instance, the Children’s Defense Fund (CDF) recently reported that “the number of extremely poor black children is now at its highest level in the 23 years for which such data exist.” CDF also noted that extreme poverty has deepened since the implementation of welfare to work requirements enacted in 1996 and that “fewer and fewer otherwise extremely poor children of all races receive cash public assistance. A growing number have no assistance, despite their extreme poverty.”

Obviously, high poverty rates within communities of color will have a deleterious impact on learning opportunities at all educational levels. While the Court declined to formally address racial discrimination claims in Grutter and Gratz, these disparities remain at the heart of why affirmative action is necessary, and why diverse racial and ethnic perspectives are key to understanding, shaping and implementing American law and policy.

II.

Another area of concern lies in the primary basis for the split opinions in Grutter and Gratz, namely the constitutionality of the specific admissions policies in the law school and the undergraduate program. By 5-4 margin, the Court determined that the admissions policy by the University of Michigan Law School, which considers race and ethnicity in a nuanced manner, was constitutionally acceptable. As such, race-consciousness is permissible as long as it is conducted in a holistic, nuanced manner, in which the qualifications and attributes of each applicant is compared against those of other individual applicants. However, by 6-3 margin, with Justice O’Connor joining Chief Justice Rehnquist’s majority opinion, the Court found that the University of Michigan undergraduate program’s 150 point system, in which 20 points were assigned to minority applicants, was not narrowly-tailored and thereby violated the Equal Protection Clause. In this regard, the Court found that the undergraduate policy placed too much emphasis on race in an inflexible, determinative way.

Upon closer consideration, however, it is difficult to find a convincing basis for the Court’s distinction between the program upheld in the law school, and that struck down in the undergraduate program. Hence the distinction between a policy that is constitutionally acceptable and that which is not seems to be the difference between the oblique and the obvious consideration of race in university admissions. As Justices Souter and Ginsburg noted in separate dissents in Gratz, the undergraduate program contained an objective scale that adhered to the racial “plus factor” system that Justice Powell approved in Bakke. By assigning a range of point values to several hard and soft admissions criteria, individual assessments of candidates was conducted and admission was not guaranteed on the basis of race. Thus, it is ironic that the Court rejected the point system in Gratz, as the University sought an objective and flexible approach to the admissions decision.

What is particularly troubling about the Court’s distinction, however, is the preference for vague consideration of race in admissions, when the Court has acknowledged the significance of race in American life and educational opportunity. The Court’s disapproval of the undergraduate program’s clear approach to considering race and other relevant attributes in the admissions decision will make it more difficult to deal with race and racial disparity forthrightly. In contrast, in upholding the law school’s policy, the Court perpetuates the minimization and obscure consideration of race and ethnicity in areas where it matters most. This lack of transparency in dealing with racial issues seems to reflect the American public’s continual denial of the salience of such matters. Thus, while public opinion polls by Pew, Cornell University and others reveal that a substantial majority of the American public supports affirmative action in theory, many (primarily whites) oppose specific programs that would ensure its effectiveness.

For this reason, the Court’s opinion in Grutter, while a victory for the recognition of racial and ethnic diversity in higher education, may have the counterproductive effect of upholding the principle of affirmative action while allowing only minimal consideration of race and ethnicity in university admissions. This unfortunate result would serve to further inculcate the underlying racial discrimination that makes affirmative action necessary, especially for the lack of attention to matters of race.

III.

In light of the Court’s reluctance to expressly acknowledge the persistence of racism and inequity in American social institutions, perhaps the most troubling aspect of the Court’s decision in Grutter is Justice O’Connor’s ostensible establishment of an endpoint for affirmative action in 25 years. She stated in the opinion, “We expect that 25 years from now the use of racial preferences will no longer be necessary to further the interest approved today.” In a subsequent interview in the Chicago Tribune, Justice O’Connor clarified that her mention of the 25 year period was an expression of hope, not a firm deadline. However, opponents of affirmative action have seized upon this time-frame as a constitutional line in the sand.

Justice O’Connor’s expressed desire for an end to affirmative action within a generation is consistent with her philosophy of colorblind constitutional analysis and her wish for a nation in which racial and ethnic distinctions no longer exist. As her previous opinions on affirmative action and voting rights indicate, she views continued recognition of race and ethnicity in law as not per se impermissible, but as divisive forces in American society. See, e.g., Shaw v. Reno (1993)(“A reapportionment plan that includes in one district individuals who belong to the same race, but who are otherwise widely separated by geographical and political boundaries, and who may have little in common with one another but the color of their skin, bears an uncomfortable resemblance to political apartheid.”) The erasure of racial, ethnic, and cultural uniqueness is a peculiar aspiration, in my view, and one that ultimately would deprive the nation of the strength, acumen, creativity, and resourcefulness of people from diverse backgrounds who are Americans. Thus, I believe that Justice O’Connor’s insistence on a color-blind society is not constitutionally required, nor socially desirable.

IV.

While advocating a color-blind society, Justice O’Connor nevertheless retains a degree of realism upon recognizing the significance of race and ethnicity in American society and by extension in constitutional analysis. However, her conservative brethren on Court would reject any attention to race by government as wholly impermissible and violative of the Fourteenth Amendment. In this regard, Justice Thomas’s dissent in Grutter warrants particular discussion. Justice O’Connor and Thomas share the belief in a color-blind America, albeit from different vantage points. Justice O’Connor believes attention to race to be detrimental to the nation, whereas Justice Thomas believes attention to be detrimental to the putative beneficiary of beneficial racial programs. Justice Thomas invokes his racial identity as an African American and his discomfort with having benefited from affirmative action as the starting point for his dissenting opinion.

For purposes of arguing against race-based affirmative action, Justice Thomas quotes Frederick Douglass, speaking to abolitionists on January 1, 1865:

[I]n regard to the colored people, there is always more that is benevolent, I perceive than just, manifested towards us. What I ask for the negro is not benevolence, not pity, not sympathy, but simply justice. The American people have always been anxious to know what they shall do with us . . . . I have but one answer from the beginning. Do nothing with us! If the apples will not remain on the tree of their own strength, if they are worm-eaten at the core, if they are early ripe and disposed to fall, let them fall! . . . And if the negro cannot stand on his own legs, let him fall also. All I ask is, give him a chance to stand on his own legs! Let him alone! [Y]our interference is doing him positive injury.

This quote, while representative of Frederick Douglass’s views, is quickly revealed as disingenuous as used by Justice Thomas upon recognizing that Douglass’s hopes for African Americans in U.S. society did not materialize. When Frederick Douglass called upon the U.S. government to “leave the negro alone,” he spoke two years after the Emancipation Proclamation of January 1, 1863. His was an appeal for fairness, enfranchisement, and full citizenship for African Americans. But the Nation did not leave the “Negro” alone. Hence, events before and after the inception of the nation, including slavery, segregation, Jim Crow, Black Codes, terrorist marauders, disenfranchisement, land dispossession, and discrimination in education and employment, relegated African Americans to slavery and near-slavery conditions after the Civil War. So steeped was the nation in racist ideology of Anglo-American superiority and African-American inferiority, that Black soldiers were not permitted to serve in the Union forces in the struggle for their own emancipation, and as confederate forces pressed Blacks into service as military slave laborers. When Lincoln finally relented, due in large measure to Douglass’s entreaties, Black soldiers served gallantly, under worse conditions and less pay than their white counterparts.

Thus, while Douglass tirelessly advocated for racial equality, his speech on April 16, 1883, twenty years after the Emancipation Proclamation, expressed his disappointment at the lack of rights accorded to Black citizens, and bears excerpting at length:

Let any man now claim for the negro, or, worse still, let the negro now claim for himself, any right, privilege, or immunity which has hitherto been denied by law or custom, and he will at once open a fountain of bitterness, and call forth overwhelming wrath.

It is his sad lot to live in a land where all presumptions are arrayed against him, unless we accept the presumption of inferiority and worthlessness. If his course is downward, he meets very little resistance, but if upward, his way is disputed at every turn of the road. If he comes in rags and wretchedness, he answers the public demand for a negro, and provokes no anger, though he may provoke derision, but if he presumes to be a gentleman and a scholar, he is then entirely out of his place. He excites resentment and calls forth stern and bitter opposition. If he offers himself to a builder as a mechanic, to a client as a lawyer, to a patient as a physician, to a university as a professor, or to a department as a clerk, no matter what may be his ability or his attainments, there is a presumption, based upon his color or his previous condition, of incompetence, and if he succeeds at all, he had to do so against this most discouraging presumption.

It is a real calamity, in this country, for any man, guilty or not guilty, to be accused of crime, but it is an incomparably greater calamity for any colored man to be so accused. Justice is often painted with bandaged eyes. She is described in forensic eloquence, as utterly blind to wealth or poverty, high or low, white or black; but a mask of iron, however thick, could never blind American justice, when a black man happens to be on trial. Here, even more than elsewhere, he will find all presumptions of law and evidence against him. It is not so much the business of his enemies to prove him guilty, as it is the business of himself to prove his innocence. . . .

Despite his recognition that the nation had not “left the negro alone,” Douglass remained confident in the ability of Americans and the U.S. government to be fair. Yet at the Republican convention of 1876, he asked, “Do you mean to make good to us the promises of your constitution?” The fulfillment of the promises of fairness and full citizenship bespeaks the continuing need for affirmative action.

V.

In the short and long run, communities of color also prefer an end to the need for affirmative action. They recognize, however, that affirmative action will no longer be necessary once the entrenched structural inequalities in educational opportunity for children of color cease to exist. Appreciating these preconditions, former Republican Congressman Jack Kemp recently called “shortsighted” his fellow conservatives’ efforts to continue to oppose affirmative action after the Court’s decision. According to Kemp, “While I agree that ultimately a colorblind society should be our goal, we certainly are not there yet. Blacks were removed from the mainstream economy, denied access to education, job opportunities and access to capital and ownership. Thus, African Americans have long been denied their full measure of justice under the law, and while great progress has been made, we have a long way to go.”

Next year, the nation will commemorate the landmark Supreme Court decision in Brown v. Board of Education (1954). In Brown, a unanimous Supreme Court declared racial segregation in primary and secondary public schools to be inherently unequal, and thereby unconstitutional. We need only acknowledge our national shortcomings in realizing the promise of Brown fifty years later as we contemplate the implications of Justice O’Connor’s suggested time limitation for affirmative action in 25 years. Indeed, the Harvard Civil Rights Project has revealed that racial segregation in K-12 schools is greater than 30 years ago. HCRP attributes this retrogressive phenomenon to white flight, increases in enrollment by Black, Latino, and Asian students, racially segregated housing patterns and other forms of housing discrimination, and the termination of court-ordered desegregation decrees.

Surely, all agree with Justice O’Connor that, “Access to legal education (and thus the legal profession) must be inclusive of talented and qualified individuals of every race and ethnicity, so that all members of our heterogeneous society may participate in the educational institutions that provide the training and education necessary to succeed in America.” However, if higher education is to remain accessible to all so that the benefits of equality and diversity are achieved, affirmative action cannot be terminated by arbitrary date-setting. Justice Ginsburg best expressed this reality in her clear-eyed concurrence in Grutter, stating: “[F]rom today’s vantage point, one may hope, but not firmly forecast, that over the next generation’s span, progress toward nondiscrimination and genuinely equal opportunity will make it safe to sunset affirmative action.”

About an earlier era, historian Eric Foner has written, “From the enforcement of the rights of citizens to the stubborn problems of economic and racial justice, the issues central to Reconstruction are as old as the American republic, and as contemporary as the inequities that still afflict our society.” Apropos the current discussion, unless and until the nation demonstrates the will and commits the necessary resources to end racial inequity and injustice, affirmative action will remain necessary. In the absence of such commitment, yesterday will look very much like today, and today will look very much like tomorrow – jam yesterday, jam tomorrow. The Supreme Court’s decision in Grutter, in which it recognizes the signal value of diversity in educational and national institutions, provides the American public a powerful incentive to make the promises of democracy a reality for all citizens.

September 5, 2003

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