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.

By Mark Follman - Compiled by Laura McClure

Published June 24, 2003 11:40PM (EDT)

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.

Theodore M. Shaw, associate director-counsel of the NAACP Legal Defense and Educational Fund

We are very pleased and gratified by the fact that the Supreme Court has upheld the constitutionality of affirmative action, and we see these cases as being a significant victory for the proponents of equal opportunity.

I think that these two decisions make it very clear that affirmative action is legal and institutions can pursue diversity, as long as they do it the right way. That means no quotas, no separate pools of applicants, and that the institutions have to [give applicants] individualized consideration. It is an endorsement of Justice Powell's Bakke decision.

The right has attacked affirmative action by arguing that there was no controlling opinion in Bakke, that it was only the opinion of Justice Powell who bridged two camps of opinion. We are left in a stronger position today than we were before the Michigan decisions were announced, because now we have five justices adopting the diversity rationale that Justice Powell articulated in Bakke. So, ironically, this court -- which is viewed as being more conservative than the Bakke court, has actually handed down a decision that more strongly endorses affirmative action.

I think what this says about race and diversity in America today is that there is a realization that we continue to struggle with issues of racial inequality and that we cannot turn around as a nation. We cannot turn back the clock. And no matter how difficult these issues are, we continue to march forward, not backwards, and even a conservative court does not want to stop or retard the progress that we've been making so painfully over the last 50 years.

[Regarding Justice O'Connor's statement that "we expect that 25 years from now, the use of racial preferences will no longer be necessary"]: I think if we're going to get there within 25 years, we as a nation are going to have to roll up our sleeves and commit ourselves to the struggle against racial inequality and the legacy of racial discrimination and segregation. No one would be happier if we got there within 25 years, but there's a lot of work we have to do today, and that's what this opinion makes clear: that that work is appropriate, that it's not unconstitutional to consciously work to provide opportunities to members of racial minority groups who have been discriminated against.

The entire country has been watching these cases, and that includes people who are in corporate America, people who do contracting work, really people across the board, so in that sense these decisions will have a broad effect, though it's impossible to say exactly what that effect is going to be right now. Certainly if we had lost, the other side would have been sounding the death knell of affirmative action across the board -- and they still are trying to do that, because they don't let the facts get in their way. But I think this is a broad victory for affirmative action.

Ward Connerly, author of "Creating Equal: My Fight Against Race Preferences" and founder of the American Civil Rights Institute

This is a very tortured decision and it's frustrating the nation in getting to the point where it ought to be. This will marginalize black and Hispanic students who work hard and accomplish on their own. They will still suffer the cloud of stigma and the perception that they were given something rather than having earned it.

The court has acknowledged that the universities should be trying to use race-neutral measures as a transition to the day when the court is likely to strike down all use of race-conscious measures -- they even said they expect this to happen within 25 years.

Nobody can claim total victory here, everybody got less than they would like to have. I think the criteria the court has imposed is clear, but it's a very high standard. If you say you're going to review every individual applicant and not have a point system, given the fact there's a profound academic gap between black and Hispanic students on the one hand, and Asian and white students on the other, this means that the universities are going to have to find other compelling reasons -- and they are there -- for overriding the academic measurements. In the process of doing that they're going to have the burden of proving that race was not the prevailing factor, but rather just one of many. I think these are some steps in the right direction. On the other hand, for the first time the court took the dicta in the Bakke case, Justice Powell's comments about diversity, and elevated it to, in effect, the law of the land.

Twenty-five years is only about five cycles of incoming classes. So when this is all said and done, if I'm a university administrator or admissions officer and I'm reading this language that says, "We really expect you to be dealing in good faith and moving toward the day when you no longer need to do this," what I would be saying is, "Look, we've been given a lease on life here, but we better find a way to scale down and phase out these policies." The court has suggested that we ought to be looking at California, Florida and Texas.

I'm disappointed by the ruling [in the law school case], but I'm not surprised. I did think it would fall also, by a 5-4 margin, but I'm not surprised that it went the other way, considering the briefs filed by the military and the business community, and the less than hard position of the Bush administration. In 25 years if the level of resentment hasn't boiled over for those who think this is a bad decision, and there isn't the demand that it be overturned somehow between now and then, then in the fullness of time I believe the courts will step in and say, "OK, we've given this 50 years, let's now pull the plug on it."

The academic gap is not lessening, it's widening. The notion of diversity is a smokescreen. This is really about whether we still need to keep these policies in place to try to correct for the centuries of discrimination against black people. Added to that you have this new numerical majority in some states, and a growing minority nationwide -- namely those of Mexican descent -- and the court is not very anxious to do what the Constitution very clearly requires. So in the end, this is a frustrating decision: Nobody lost completely, but nobody won completely.

Orlando Patterson, the author of "The Ordeal of Integration" and a professor of sociology at Harvard

I think it was a good decision. The criteria for the Michigan undergraduate program were definitely too crude. And I'm not worried about the fact that this decision is going to invite further lawsuits because affirmative action, by its very nature, is something that has to be constantly discussed and calibrated. In purely theoretical terms, it's an issue which is clearly at odds with some fundamental principles, but these have to be reconciled with reality -- America's genius has been to do just that. But if you make it a sort of fixed issue which is out of the range of discussion, then that's a problem. The Supreme Court is saying, "Look, we have to keep watching this thing. It has to be tuned to the times," and I agree with that.

It seems to me that institutions will now have to be more nuanced in their approach. A strict point system doesn't work, because it brings in a substantial number of people who should not be there. Basically, I see affirmative action as access, as allowing for a more heterogeneous elite. Let's be clear: This is really about the elite class; affirmative action doesn't have much to do with the underclass or the poor. There is a lot of opposition to it because [it's seen as] hurting the elite segment of society.

Simply having a 20-point advantage [as University of Michigan has] creates a situation where you have a lot of people being brought in who are not qualified. This is reflected in a high dropout rate. It seems to me that a more nuanced system which raises the bar but still takes account of minorities is a better one.

I don't think either side can claim a strong political victory today; the court is very wise in basically leaving the issue for continued public scrutiny. My biggest concern is to make sure that affirmative action doesn't become a permanent entitlement. This would be bad for minorities. Affirmative action is an important transitional tool for achieving both redress and progress, but it has to evolve. For example, upper-middle-class Latinos and blacks should not have access to it. On this I'm probably to the right of the court's decision -- I have real problems with upper-middle-class minorities taking advantage of affirmative action. One of the ways in which I'd fine-tune the policy right now is to exclude this group.

I share Justice O'Connor's view that in 25 years this policy should no longer be necessary. If this is a tool to create a heterogeneous elite, then their kids ought to be able to take care of themselves. In my book, "The Ordeal of Integration," I suggested this could be the case in one more generation, and I think this is a reasonable expectation. The black and Latino middle class is growing. In my Op-Ed piece [in the New York Times on June 22] I talked about the "cultural work" required -- what I mean is that certain changes in attitude will be necessary on the part of minorities. Whatever it is that's preventing middle-class blacks from performing better will have to change.

We can't take the view, "Look, we don't know what the problem is, so this is going to be a permanent entitlement." If that becomes the case, then middle-class blacks and their kids won't have any incentive to fix the problem -- whatever it is that's preventing them from scoring better on tests than middle-class whites. If you get a 20-point advantage, why bother?

Kenji Hakuta, professor of education, Stanford University

Overall, I think it's a good decision. Admissions offices, especially in large public universities that are selective, will now have to pay greater attention to the quality and content of the applications they receive. This has already been the case at smaller, private universities with well-staffed admissions offices. This decision means that places like the University of Michigan will have to behave more like those programs.

The important part of today's decision is that the court essentially accepted the University of Michigan's argument that race-conscious decision making is important in terms of continuing programs that benefit all students. I think it's a real defeat for organizations like the Center for Individual Rights, which have been trying to erase any kind of race-based admissions. I think it's very much a victory for the pro-affirmative-action side.

I also think Justice O'Connor's 25-year time frame for the policy is important. I was in graduate school myself when the Bakke decision came down in 1978, and I remember most people seeing that as a defeat for affirmative action at the time, and yet there was Justice Powell's comment, which allowed the programs to continue. So I do have a sense of that time scale, basically a full generation. I think one of the nice things about this decision is that it's going to create real motivation for those of us who believe in an end goal -- which is a society in which affirmative action programs aren't needed. It creates a kind of realistic time frame. I think it will be a motivator for institutions to examine the whole system, beginning with what happens in the K-12 sector and moving on through to higher education. It doesn't only have to happen at the point of admission to higher education; it makes us address it as a K-12 problem as well.

Without the quota system in place, I do think there will be some struggle to define what the criteria should be. During the oral arguments of the case there was a discussion of what constitutes "critical mass." John Payton, the attorney defending Michigan in the undergraduate case, basically said, "We'll know critical mass when we see it." Essentially what he meant was that it should be left up to educators to determine a balanced mix -- and that's a bit of a problem. From the public's point of view, you can't press them on that. So I think we will have to come up with better objective criteria. But I think that will get worked out.

Where the opponents of affirmative action will turn to next -- and they already have -- are these summer access programs that provide extra help to minority students. They've already started challenging whether these programs violate race-neutral criteria. In anticipation of that a lot of universities, including the University of California, have started opening these programs to students of all races and using socioeconomic criteria rather than race-based criteria. I think we'll see individual cases brought at that level, because the door is now pretty much shut as far as a categorical ruling-out of race for purposes of undergraduate or law school admissions. Hopefully we've seen the last of the cases like this for many years to come.

Mark Follman

Mark Follman is Salon's deputy news editor. Read his other articles here.

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Compiled by Laura McClure

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