A difficult, divisive issue

Top thinkers on race relations say Monday's Supreme Court rulings on affirmative action herald another generation of opportunity and another generation of conflict.

Compiled by Laura McClure and Mark Follman

Jun 24, 2003 | A divided U.S. Supreme Court on Monday issued mixed rulings on one of the most polarizing issues in modern American political culture: affirmative action in higher education. Race can be used in college admissions decisions, the court concluded, but only when considered carefully and applied in a balanced way.

In the first decision, the court ruled 5-4 that the University of Michigan law school had fairly considered race, while eschewing minority quotas, in making its decisions on which students would be admitted. But in a second decision, released soon afterward, the court concluded 6-3 that the university's use of race in making decisions on undergraduate decisions was formulaic, unfair and unconstitutional.

While the Supreme Court's decisions clearly uphold the 25-year-old affirmative action rulings in the Regents of the University of California vs. Bakke, Justice Sandra Day O'Connor seemed to signal that the days of affirmative action are numbered. "We expect that 25 years from now," she wrote, "the use of racial preferences will no longer be necessary."

Meanwhile, it seems all but certain that affirmative action will remain a contentious subject for another generation or more. And in a series of interviews with Salon, opinions from some of the nation's top thinkers on race and social policy reflected the reasoning and passion beneath the conflict.

Gary Orfield, founding co-director of the Civil Rights Project at Harvard

It's a good day for us. We are just toasting this decision; we were afraid we were going to be crying in our beer.

The law school case was a basic decision about the objectives of affirmative action, about the reaffirmation of diversity, actually the strengthening of the Bakke principle. The undergraduate case is more about means rather than ends, and it's going to force colleges across the country -- especially big public colleges -- to do a full file review of students and look at each student as an individual. That's going to be costly. It's going to be more difficult to achieve the goal in institutions that have limited admissions budgets and so forth, but it's something that can be done, and I think it has other benefits for the colleges: They're not only going to identify talented minority students; they're going to identify some other students they would have missed in a more mechanistic model.

By and large, given the temper of the times and the nature of this court, this is a very big civil rights victory, one of the biggest and most important ones in a long time. Because basically what we've been fighting on in civil rights in the last quarter century, really since the Reagan period, is whether to continue what we decided to do a generation ago or whether to go backwards, and we are going backwards in things like school resegregation. What this decision says is, we're not going to go backwards in terms of having integrated colleges and universities.

It's a win for [the Bush administration] in the sense that the undergraduate admissions point system was considered to be virtually a quota by the majority in the undergraduate case, and they were taking that position. But it's clearly a rejection of their basic objective, which was not to allow race to be considered at all, and their argument that there's a viable alternative.

And [the justices] also say on the two key issues: First, is this a compelling interest? Yes. And any ambiguity about the Bakke decision is over -- they reaffirm Justice Powell's opinion. And then, is this narrowly tailored? Is this an appropriate limited use of preference? And they say yes it is. So in the sense of the objectives and the basic argument for affirmative action that we've had for the past 25 years, this is a pretty sweeping victory for civil rights groups. In the sense of having any kind of mechanistic application of this principle, that is a limitation. That's a limitation that will actually make these plans more acceptable to the public.

It leaves universities clear that if they have something that looks like the Michigan plan, they better come up with a new plan. And if they have something that looks like the law school plan, they're in the clear. But there are probably hundreds of variations between those two plans. So everybody's going to be looking at how their plan works, and what it would look like if it were challenged in public, and I think that's going to be a healthy yet difficult process.

John McWhorter, author of "Authentically Black: Essays for the Black Silent Majority"

This is the worst day in civil rights history since the Bakke case in 1978. First of all, black students do not like being used as pawns of diversity and class. You hear this from black students again and again, that it's a burden to be sought for your views on race in classrooms. I've heard this so often when I've given talks that it gets almost monotonous -- it's a standard opinion. I felt that way, too, when I was a kid. Second, poll after poll of African-Americans, when you ask them, "Do you agree with admitting black students to higher institutions with lowered standards?" they say no, overwhelmingly.

So what we've now seen is that the highest court in the land has ratified a policy that black people do not approve of, especially when really apprised of what makes up that policy. Instead, what we've got is the idea that it's OK to take race into account. Of course, many people think that in saying that, you're adding a little bit of nuance, and it's assumed people will follow that with a certain kind of forbearance. But since 1978 we've seen what actually happens: It gives the leeway to admit black people under the bar, even those who've suffered no particular disadvantage in their lives -- which is the case with most people admitted to higher institutions. Indeed, now it's been said that there can't be quotas, but frankly, that was already old news. The general idea that you can take race into account means that all of these [institutions] can continue admitting black students with lower standards. And they will.

So the status quo will continue: Good, smart white people deeply assuming that it's not cool to submit any brown-skinned person, regardless of ability or achievement, to the [high] standards they would submit their own kids to. That's tragic. Not to mention that the people who are mistakenly in favor of this policy are now going to have in their pocket the fact that the Supreme Court has ratified it.

For about 10 years the quota idea has been out of fashion. What the issue has required is finer minds, more judgment, more reflection and a broader view. This is the whole notion of diversity. Diversity is a cute way of saying, "Shall we submit black students to lowered standards?" And now it's, "OK, now you can't have a quota," but that doesn't mean the practice won't continue. Nobody who's seen that practice up close -- and I have spent a lifetime in higher education -- should consider this a good thing. Many of the people making the decisions about this have not seen how it operates close up. It's a hideous policy.

I'm saddened by this ruling, and I'm surprised that what we would regard as nine of the most sophisticated legal thinkers in the land could not come out in a majority against a policy that is so full of holes, so unjust, so condescending.

John Stone, chairman of the department of sociology, Boston University

I wasn't very surprised; it seemed to be the predictable outcome. Clearly they were going to have a very close look at the issue, and the very narrow ruling reflects the kind of divided opinion most people expected. The fact that they seemed in principle to have maintained the Bakke position is something that will please those who favor affirmative action as practiced, although it's a little bit complicated by the second decision, which suggests that universities and other places are going to have to modify the way they implement these policies.

I think the way many universities have been applying points will have to be changed somewhat, but there does seem to be enough ambiguity in the ruling to be able to still give consideration to assisting policies that help minorities achieve what they're obviously capable of.

The very fact that corporations and the military were prominent in the evidence provided suggests that this is something all aspects of American society are concerned about. I think basically it's going to mean we carry on with the policies we've been pursuing for the last decade or two. Nothing particularly radical, but no stepping back from the direction in which most organizations have responded to diversity.

Regarding O'Connor's statement, I think she's optimistic, but that clearly is the goal. Even those people who are strongly in favor of affirmative action see it as a transition where taking race into account is unnecessary. But given the realities of American society, I think 25 years is a reasonably optimistic goal to aim for.

I think most people who believe that there's a long way to go on racial justice in American society are slightly relieved that it was 5-4 in favor and not 4-5 against -- that would have been a disastrous decision. As it is, I think it's probably the best decision that could be made under the circumstances.

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