As a famous baseball player once said, "It’s déjà vu all over again." With the Supreme Court’s decision to hear the two University of Michigan affirmative action cases (Grutter v. University of Michigan, the law school case, and Grantz v. Michigan, the undergraduate case), the issue of affirmative action that had been dormant for almost a quarter century has suddenly vaulted to the front pages again. But while the media has not focused much attention on affirmative action since its brief review of Clinton’s "mend it, don’t end it" policy, a well-financed and well-organized conservative movement has kept affirmative action policies of all types squarely in its sights since the Reagan administration. While these groups claim a "commitment to fairness," or a desire to reclaim the real meaning of equality, closer examination suggests that much more may be going on.
How Did We Get Here?
To understand where we are now and what is at stake, we have to look at both the history and context of this present conflict. President Kennedy first mentioned affirmative action as a component of the work of the Committee on Equal Employment Opportunity, but the concept didn’t crystallize into a fleshed-out federal policy until President Johnson launched his Great Society initiatives. In a speech at Howard University in 1965, he proclaimed affirmative action to be "the next and more profound stage of the battle for civil rights. Not just freedom, but opportunity. Not just legal equity but human ability. Not just equality as a right and a theory, but equality as a fact and as a result." Executive Order 11246 followed shortly thereafter, requiring federal contractors to take affirmative action to ensure equal employment opportunities for persons of color designated as "minorities" by U.S. Census data. In 1967, gender was also added.
Interestingly, access to employment, rather than higher education, was initially the focus of this federal mandate. But many colleges and universities saw parallels between the exclusion of persons of color from whole sectors of the job market and their near-total absence from many universities. As employers were developing goals and timetables for hiring, universities began their own version of affirmative action through a variety of efforts–focusing initially on admissions, but later expanding to recruitment, retention, counseling, and a host of curricular reforms that laid the framework for the various "ethnic studies" programs that grew significantly throughout the 1970s.
Admissions reform was, from the inception of affirmative action efforts, a thorny issue for colleges. While the legal mandate to desegregate public schools "with all deliberate speed" began in 1954, by the mid-1960s, little progress had been made in the south. Its northern school districts, which had seen themselves as outside the orbit of "Jim Crow " laws, had also followed patterns of racial segregation almost as rigid and pervasive as their southern counterparts. For colleges, this meant that the available pool of potential black applicants had been legally and functionally denied the equal-education opportunity promised by Brown v. Board of Education.
Colleges responded by instituting a variety of new admissions efforts. Most de-emphasized the use of SAT scores in admissions for students of color and instead took a more complete view of the minority applicant. During this period, there was less attention focused on various admissions models than on how students of color could be "integrated" into the college environment. This phase of university affirmative action proved to be a rocky road for everyone. White students, many of whom had never attended schools with students of color, had to learn that integration was not the same as assimilation. University officials, while usually willing to defend their admissions practices, were often woefully unprepared for the clash of cultures brought about by this new "experiment" in integration. Many students of color in their youthful naivete often saw the college campus as a paradigm of real world politics and fought many a battle of the "black power" movement over issues as small and transitory as whether there should be a "blacks only" table in the school cafeteria. Until recently it seemed that all parties had grown through these experiences and had more or less made peace with the reality of affirmative action. As a result, affirmative action extended its outreach to Latinos, Asians, and American Indians, and a generation of students have been admitted, enrolled, and matriculated at universities nationwide.
One issue that seemed to have been settled early on was that, in order for a college admissions program to be successful, it had to move beyond tokenism to seriously address internal practices and traditions that had not only excluded students of color at the door, but that also resulted in faculties and staffs that were almost completely white. In the admissions office, this meant making a commitment to enroll a "critical mass" of students of color. This concept could never be captured and explained by a mere number, whether it was called a target, goal, or quota. Even so, some programs did pursue diversity by means of a specific set-aside of seats for minority applicants. But typically, a "critical mass" has simply meant admitting and enrolling a sufficient number of students of color who can form, when necessary, a supportive community within the larger college community. This "critical mass" formed a presence where cultural norms and nuances from home could be practiced and reproduced, a group that would both facilitate and cushion the often difficult transition into the university environment. While critics have complained that this process encourages "self-segregation" by students of color and condones further separation by permitting ethnic studies or ethnic-themed dorms, little attention has been given to the experiences of students of color in confronting everything from benign neglect and outright hostility, to occasionally hate crimes as they made the transition to college life.
It’s important to emphasize this last point because even the supporters of affirmative action often ignore that while the legal system only recognizes "discrimination," what students of color are actually facing are the many forms that racism takes on, including but not limited to the legal definition of discrimination. A "critical mass" is not a quota, but a tacit recognition that racism as a social phenomenon does manifest in many forms and, as it continues to permeate society, it inevitably finds its way into the university environment. Discrimination doesn’t disappear overnight. Meaningful integration has always been a result of persistent social engineering. The continuing burden for all people of color is that one never gets to call a time out from racism. Even though we have achieved progress in dismantling the legal superstructure of American apartheid, like its South African counterpart, it has left a resilient residue that still affects our culture, politics, economics, and social policy, including the way we view education and the process of affirmative action.
The Reverse Discrimination Movement
Like "political correctness," the notion of "reverse discrimination" seems to have taken on a life of its own, whether the application makes sense or not. Certainly the idea has been boosted by the attack on affirmative action that emanated from some liberal intellectuals in the 1970s. Supported by the publication of Nathan Glazer’s Affirmative Discrimination in 1975, many college campuses found their faculties split right down the middle on the issue. At the heart of this early debate was the question that is central to the conflict today. Does the difference in the median SAT scores between white and non-white test-takers mean that schools using affirmative action are admitting students of color who are less qualified for the seats they occupy than a white applicant who may have scored higher? It’s no surprise that in the midst of controversy, and at times turmoil, some programs were poorly conceived, poorly designed, and poorly run. These "weak" programs became easy targets for on- and off-campus opponents.
As affirmative action policies spread to graduate and professional schools, where there has always been keener competition for fewer seats, the issue of who should be admitted and how test scores should be weighed grew ever more intense. The Bakke case over admissions policies at the UC Davis Medical School moved forward from Yolo County to the Supreme Court in 1978. It was accompanied by strident debates in almost every public forum and a large and often militant student movement. These young people were already political veterans. While most were too young to have participated in the civil rights struggles of the 1960s, they identified with the black power movement and ardently debated Malcom’s "ballot or bullet" thesis, studied and criticized the Black Panthers, helped launch the South African divestment campaign, and saw higher education as a stepping stone to community empowerment. While many arrived on campus by means of affirmative action programs, these students brought a consciousness rooted in the belief that education was a right–not a privilege–regardless of what the courts had to say about the issue. It was fitting that as the Supreme Court heard Bakke, these students and their supporters from many sectors of the community were marching in the streets. They understood what was at stake.
The Legal Assault
Bakke really resulted in three opinions. How those opinions will be interpreted in the future is precisely the question that the Supreme Court will decide in April. Four justices (including Justices Rehnquist and Stevens) found that UC Davis operated an admissions system based on unlawful racial quotas. They argued that, under the application of the rules for "strict scrutiny," the university had no "compelling interest" for such an explicit use of race, and their program was therefore unlawful. Four other justices tried to carve out a narrow exception for the use of race. They argued that using race to socially engineer integration was not racism.
Justice Powell, while agreeing that the Davis program was an unlawful quota, split off and argued that race could be used in a properly designed admissions system, as long as it was only one factor among several that were being considered in deciding whom to admit. Powell’s opinion, for the last 25 years, has been interpreted as the legal basis for permitting race-conscious admissions at colleges, universities, and many graduate and professional schools. This delicate balance persisted until a well-organized and well-financed conservative movement systematically set out to change the law, and with it the composition of freshmen classes from coast to coast.
In 1989, the new attack on affirmative action moved from the academic journals, and sometimes raucous, faculty meetings to the courtroom when conservative "think tanks" and foundations spearheaded the development of the Center for Individual Rights (CIR). Modeled after the successful NAACP Legal Defense Fund, CIR and its progeny have set out to bring as many lawsuits as possible challenging affirmative action. Reading CIR’s claim to protect "individual rights," one might think they work hand in glove with the ACLU. But they have a very different agenda. Several early grants that helped launch their program were provided by the Pioneer Fund, which was started in 1937 and is a leading supporter of "race science" research attempting to show that genetic differences account for the inferiority (usually in terms of IQ) of African Americans. While CIR has never explicitly endorsed these views, they have argued that affirmative action results in the admission of minority students who are simply not qualified to be at the universities that have admitted them. They have pursued a step-by-step strategy, not unlike the litigation that led up to Brown v. Board of Education. They have won cases in lower courts and created divisions between several federal courts of appeal. This plan was designed to increase the likelihood that the Supreme Court, with its clear conservative majority, would step in and settle this now quite unsettled legal landscape. Grantz and Grutter, the University of Michigan cases, represent the culmination of this strategy.
However, several factors make the Michigan cases unique. First, the Sixth Circuit Court of Appeals upheld the admissions system for the law school, and most civil rights advocates had believed that graduate and professional schools would actually be the harder case to make under a diversity rationale. Secondly, the university employed its own social science experts to measure and track the impact of diversity on the quality of the campus educational environment. The results were clear. The university declared that part of its mission is to prepare graduates for work in an increasingly diverse world. Their data showed that heterogeneous groups interact differently and offer more creative solutions to problem-solving. The judge not only found the goal of diversity "compelling," but also found the university’s weighing of race in the admissions process sufficiently tailored to that goal to meet the standards of the Equal Protection clause. The Gratz case (the challenge to the undergraduate program) did find that, prior to 1998, the university had over-weighted race and that the admissions scheme was unconstitutional. However, the court recognized that corrections were made that rendered the program constitutionally acceptable and that Powell's diversity rationale is a compelling interest in a university context. Finally, students of color and their white supporters recognized what was at stake early on. They organized to intervene in the case; they lobbied constantly with the university and organized to generate support on and off campus for the value of educational diversity.
These cases don't raise some abstract legal theory far removed from the lives of average people. Access to higher education has been one of the major success stories of the civil rights movement. In a generation, the rate of college enrollment for students of color has more than doubled. Students of color who graduate have a significantly higher income compared to high school graduates. Most importantly, as students of color enroll, matriculate, and graduate from college, the technical and civic skills they develop have a positive ripple effect throughout their communities. While this "new" middle class can and should do more for those left behind, they have unmistakably formed a core of leadership and stability in communities still plagued by segregation and discrimination.
If the opponents of affirmative action prevail, the gains of the past won't disappear, but they will be significantly eroded. While it’s not unusual for the Solicitor General to speak on behalf of the administration on important Supreme Court cases, President Bush has not only weighed in as expected, but he has mislabeled the Michigan system as "quota-based." This, of course, is merely playing to his right-wing audience, because none of the courts in either of the Michigan cases held that the program used quotas. But he has also pitched to moderates. He argued that schools should use race-neutral criteria like the one in Texas that offers admission to the top 10 percent of all high school graduates. But, according to a recently released study by a team of sociologists, this plan has failed to bring minority enrollments to the levels they were when affirmative action was permitted.
Meanwhile, California and Florida have also experienced declines of minority students in programs and on campuses as a result of affirmative action bans. This "one size fits all approach" simply won’t work in the more nuanced world of college admissions. If colleges are not left to craft their admissions systems flexibly and with a keen eye to the specific diversity issues that they face, this last great social experiment in racial integration will wither away.