THE ATTACK ON AFFIRMATIVE ACTION: Lives in Parallel Universes

Michael A. Olivas

Bill Clinton's honeymoon with the press lasted barely a month past his election, foundering on the shoals of affirmative action. After weeks of combing the country for nominations, of listening to (and showing irri ation with) interest groups, the president-elect brought forth a cabinet of unusual talent, one that included, as promised, significant numbers of women and minorities.

I was elated; but critics sneered. For my part, I kept thinking of the cabinets I had known since boyhood, those phalanxes of somber white males: a dentist to head Energy, cronies with only political fund-raising skills, token signatures on dollar bills. I thought Clinton had acted to affirm a newer America of diverse talents. Not so the many columnists and cartoonists, however, who hectored the president for catering to "special interests," for playing "group politics," and‹worst sin of all‹for exhibiting devotion to affirmative action, clearly an outdated idea.

How could developments that I so welcomed be to them so fearful and loathsome? The answer is that the critics of affirmative action and I live in parallel universes, ones that cannot, by definition, intersect. To me, affirmative action has brought demonstrable improvements; to them, godlessness and perdition.

Nowhere is this difference clearer than in higher education, where the attack on affirmative action has been in full swing for several years now. Dozens l of articles and reports have appeared in the waning Reagan-Bush years, all of them decrying affirmative action in higher education as a sop to minorities, a political spoils system, and an affront to meritocratic standards. Their common thread: an assumption that only white men are qualified, and that any woman or person of color is appointed because of politics.

Dinesh D'Souza's Illiberal Education was the quintessential screed in this literature. His stories were harrowing: minorities electing themselves to victim status; deserving white students at Berkeley shunted aside for less-deserving blacks and Latinos; Stanford capitulating to the know-nothings; Harvard holding sensitivity sessions for its staff. As I said in a Change (September/ October, 1991) review of D'Souza's book, it's a sulphury vision of higher education hell.

Among all these articles and reports, the most trenchant appear in the legal literature; law schools, one understands, are home to both high-stakes admissions procedures and to lawyers who like to argue. In that literature, one of the longest-playing critics of affirmative action is Lino Graglia of the University of Texas Law School. Graglia advanced his arguments with a 1970 law review piece decrying special admission of the "culturally deprived"; this past year, the Journal of Legal Education published his "Race Norming in Law School Admissions."

Graglia gives away nothing to D'Souza in blaming academe's downfall on affirmative action. He takes as the centerpiece of his current article a widely publicized incident at the Georgetown University Law Center (GULC): GULC student Timothy Maguire's posting of intergroup Law School Admission Test (LSAT) scores by race. Maguire wrote an article for the student newspaper revealing that, according to his analysis of scores he had observed as a student clerk in the admissions office, the median score for white law school applicants accepted at Georgetown was 43 (94th percentile on a 10-48 scale), while the median score for blacks was 36 (70th percentile). As Graglia notes, this disclosure was "met . . . with a swift, severe, and typically disingenuous response. "

Although he is critical of what he terms the "disingenuousness" of the GULC and newspaper responses, Graglia notes that the combined response of the Association of American Law Schools (AALS), the American Bar Association (ABA), and the Law School Admissions Council (LSAC) was particularly pernicious. The press release was written in support of "equal opportunity" and "diversity," which Graglia defines as "unequal opportunity (the application of much lower admission standards to some applicants than to others)" and "the current newspeak designed to obfuscate the issue of racial discrimination [against whites]."

The three organizations, which include the LSAC‹the monopolistic law testing service that administers the LSAT exam required for law admissions‹downplay the quantitative measures of college grade point averages and LSAT scores and note that law school admissions committees also consider "personal statements from applicants, letters of recommendation, work experience, and the applicant's prior success in overcoming personal disadvantage."

Although Graglia appears to agree that these qualitative criteria "should be considered in making law school admissions decisions," he objects to the silence about race in the press release. 'One must wonder," he says, "how those strange ideas about racial preferences ever arose.'' As he sees the matter, the only serious "point of contention" in the Maguire case is "whether it is appropriate and desirable to grant preference to some applicants and, therefore, to exclude others solely on the basis of race and, it so, to what extent."

However serious his reservations about the (mis)use of admissions criteria, Graglia reserves his strongest criticism for the ABA and the AALS: "they have made the practice of discrimination in favor of members of certain racial minorities and against whites a de facto condition of accreditation." Graglia believes that, without discrimination, law schools would not be able to attain the necessary diversity in their student bodies, and that, without the accreditation standards, they would not be required to do so. He considers the application of different and lower admission standards for blacks the "central, intractable fact" of the issue, one he traces back to Green v. County School Board of New Kent County, Va., a K-12 school busing case.

Graglia contends that in order to avoid sanctions, law schools must have a minimum black student enrollment of 5 percent and that the schools accomplish this by "a system of race norming," in which "black applicants compete only with other blacks, not with whites." In his view, race norming produces "two separate student bodies" and results in "a loss rather than a gain for blacks in self-respect and the respect of others." Graglia regards affirmative action in higher education as "a disastrous policy" and argues that accreditation committees are interested only in "what percentage is black," rather than in obtaining genuine diversity or in remedying real economic and educational disadvantage. In Graglia's view, affirmative action has undermined merit as a consideration empolyed race as a proxy for other meritorious criteria, treated blacks as if they were a commodity in the academic marketplace, and caused whites to question the achievements of all minorities.

Graglia's arguments have been echoed in other articles -- two of his students, for example, analyzed University of Texas Law School admissions records, concluded that they contained patterns not unlike those at Georgetown, and breezed to the conclusion that such practices violate Title Vl of the Civil Rights Act. Readers will recall, in the same vein, the attack launched by the Department of Education's Assistant Secretary for Civil Rights, Michael Williams, on the potential use of Fiesta Bowl proceeds for minority scholarship funds -- an attack that it took the department and Williams a year to explain (mostly) away. All the while, formal court challenges to such scholarship funds, and to race as a factor in the award of financial aid, have begun to pop up, mostly without legal success, but with subtle effects on institutional practice. A disquieting mood of "race neutrality" has settled on parts of academe; Graglia knows that many academics have come to see the world as he does . . . and as he thinks it should be.

As in any scrap, there is another aside to this story, and there always has been. The parallel universe I live in provides me quite a different view of affirmative action and its effects. The biggest difference between those who appreciate and those who condemn the effort turns out to be historical memory, and our place in that memory. Just as the young cartoonists who took on Clinton's cabinet had no memory of Eisenhower's, so, too, in higher education we find most of affirmative action's critics with memories that (conveniently for them) reach back only to the 1970s. In the law reviews, they trace their objections only back to DeFunis v. Odegaard (1974) and ground their arguments in Bakke (1978); thus they attempt to wipe the slate clean by erasing the history of racism in higher education. This historical amnesia not only enables such critics to deracinate a race drenched process but convinces them that nonracial measures of merit were always fairly defined or administered. This stubborn conviction holds that admissions practices always produced fair results until recently, when affirmative action programs have been used against whites.

This extraordinary view of the world -- the critics' tightly walled universe -- ignores the evidence that admissions processes were historically the means by which minority disadvantage and white privilege were maintained. Although nearly every schoolchild knows of Brown v Board of Education, the 1954 case that banned segregated public schooling, few people know that the road to Brown was paced primarily with cases involving colleges and universities, beginning nearly 20 years before 1954.

In the legal fights to ban segregation, colleges made a perfect target, relying as they did on race rather than merit. In 1936 Charles Houston and Thurgood Marshall successfully challenged the exclusion of blacks from the University of Maryland law school. This success must have been sweet for Marshall, who, as an undergraduate and law student. had been ineligible for admission to the public white institutions of his home state. In 1938 the Supreme Court invalidated a Missouri plan that barred black residents from the University of Missouri law school but paid their tuition at schools outside the state. Georgia, Maryland, Virginia, and several other states had similar plans, which were pathetically underfunded. In 1936, for example, Maryland's program had nearly 400 applications for 50 out-of-state "scholarships."

In 1948 the Supreme Court required Oklahoma to enroll a black law student at its law school or create a black law school; the state chose to create a separate school rather than admit black students to the existing school. In 1949 Marshall had to contend with Maryland again, when the state argued that its obligation to enroll black students at l the University of Maryland, imposed a dozen years earlier, extended only to the law school, not to its nursing program. Oklahoma decided that it could not afford to create separate programs for all the black students who wanted to attend specialized graduate programs, so it admitted G. W. McLaurin to a doctoral program at the University of Oklahoma -- but with a twist. The New York Times ran a story on Oct. 14, 1948, about "the first class ever attended by a Negro at the University of Oklahoma," reporting that the university also had assigned McLaurin "a special desk in the library and a special room in the student union building where he can eat meals." The photograph accompanying the story is deceptive. At first it appears that McLaurin is seated in a classroom, but when you look closer you see he is in the "anteroom," or foyer outside the classroom. And - his special desk and lunchroom were actually ramshackle facilities designed to keep him separate from his white classmates. In 1950, in McLaurin v. Oklahoma State Regents, the Supreme Court ruled this shameful practice unconstitutional.

In Texas, the state went so far as to establish a separate black law school -- Texas State University (later Texas Southern University) -- to keep blacks from enrolling in the University of Texas at Austin. But in another 1950 case, the Supreme Court ruled that there were such substantial differences between the resources of the two schools that, the practice of creating a separate but clearly unequal school could not be countenanced. Like Texas, South Carolina established a black law school rather than enroll black students in its public institutions. Marshall argued this and more than a dozen other higher education cases, using the precedents that he and his colleague Charles Houston had been carving out since 1936.

States proved intransigent -- delaying, dragging their heels, promising to build new programs or fund scholarships, and, in each instance, conceding nothing. When Georgia, under fire, was forced to admit Charlayne Hunter, now a well-known journalist, into the University of Georgia, the state was back in court in a week, arguing that the state did not have to let her into the student union to eat. The registrar of the University of Alabama was required under a court order in 1955 to admit black students, but his successor went to court in 1963, saying that he was not bound by the earlier judgment. This disingenuity also led southern states to argue, albeit unsuccessfully in most instances, that Brown v. Board of Education was limited to public elementary and secondary schools, inasmuch as its facts arose in an elementary-secondary setting.

The extent to which states would go to thwart minority admissions is, even in context, quite extraordinary for its boldness. In Mississippi, following Brown, the university trustees began an "alumni voucher requirement," necessitating five letters from graduates who were willing to attest to the good moral character of any applicants to the institution. Needless to say, this race-neutral requirement was a thinly disguised racial tool; no white graduates of Ole Miss were going to vouchsafe for the character or admission of a black applicant in 1954. When James Meredith applied to the University of Mississippi in 1962 and was ordered admitted, the practice was discontinued. The next year, however, the state's white institutions initiated a new requirement, that all college applicants present standardized exam scores. To close any potential loophole, the minimum admission score was set at 15, below the white median of 18 and well above the black median score of 9.

These were far from the only such instances of official state resistance to integration, realized through manipulation of admissions processes; memory of them is enough, however, to block any thought that somehow a process that was "fair" in the past has been made foul in the present. To anyone with a memory, today's practices have to look like a tremendous improvement.

But, Graglia and other critics will counter, all this "progress" has come unfairly at the expense of deserving white students. The data flatly contradict this view. The number of white law students in 1990-91 reached an all-time high of 115,103. In 1990, whites took 79 percent of all the LSAT exams administered and occupied (in 1990-91) 85 percent of all law school spaces. Blacks constitute 6.3 percent of all enrollments, and other minorities an even smaller percentage . . . indeed, Mexican-American and Puerto Rican enrollments have declined since the early 1980s. In 1990, 58 percent of all the whites who applied to law school were admitted; of all groups, only Asian-Americans were admitted in a higher percentage (61 percent). One can continue with the statistics but, in brief, there is no evidence of white slippage or of unfairness here.

Nor is it true that accreditation requirements have forced law schools to admit disproportionate numbers of minority students. Graglia fumes that the wrath of accreditation bodies will be visited on law schools not enrolling student bodies at least 5 percent black; he states that this quota is "probably the minimum necessary to escape harassment or worse by the AALS or ABA." Yet enrollment data show more than 71 law schools (of 175) reported black enrollments lower than 5 percent in 1990, even in institutions that recruit from substantial black populations. If decertification is a sword hanging over law schools' heads, neither the sword nor the schools seem to have been much moved.

The white baneficiaries of racial practices assume that they reached their station in Life on their merits and that minority communities advanced only through bending the rules. Critics of affirmative action have become convinced that higher scores translate into more meritorious applications and that relying on an "objective" set of measures would constitute a fairer, race-neutral process. The evidence for this proposition is exceedingly thin; indeed, a substantial body of research literature and academic common practice refute this premise. The heavy reliance on test scores and the near-magical properties accorded them inflate the narrow and modest use to which any standardized scores should be put. Accepted psychometric principles, testing industry norms of good practice, and research on the efficacy of testing all suggest modest claims for test scores, whether standing alone or combined with other proxy measures. Test scores are at best imperfect measures that modestly predict first-year grades, and first-year grades are only a small part of the aptitude for law study. More important, the same score means different things for different populations. Careful studies of predictive validity consistently show that scores from standardized tests are less predictive of Hispanic students' first-year grade point averages (both underpredicting and overpredicting) than those of Anglo students. If research consistently shows l that test scores predict differently and less well for different populations, including men and women, this finding weakens substantially the claim by affirmative action critics that the LSAT or other standardized tests should be given more weight in the admissions process.

Georgetown's Timothy Maguire, whose crude and incomplete study of GULC test scores so moves Graglia, found himself with an LSAT score of 39, halfway between what he claimed was the black median (36) and the white median (43). Not only does his analysis misrepresent the concept of a median (the point at which half the scores are higher and half lower), but he fails to apprehend that a 36 represents the 70th percentile of all testtakers and a substantially higher percentile for all black LSAT testtakers.

Students whose LSAT scores are in the 70th percentile certainly can be admitted to a selective law school with little fear that they will fail, particularly if their scores predict grades less well than do white students' scores. But white students have become convinced that their higher scores warrant automatic deference and privilege. One white applicant to Duke filed an official complaint with the Office for Civil Rights because she was denied admission on her high school record (11th in a class of 114 and an SAT of 1180 of 1600), while her black high school classmate was admitted to Duke with a class rank of 18th and an SAT score of 1130. On this virtually indistinguishable difference in records, federal action was undertaken.

Finally, a recent case defines conditions within which a public or private law school can construct and administer an admissions program that includes racial criteria. In Davis v. Halpern, a white law school applicant denied admission eight times to the City University of New York Law School at Queens College (CUNY) was able to raise fact questions concerning the admissions process sufficient to survive a summary judgment. Citing Bakke, the district judge (who reviewed the CUNY admissions practices) held that it is permissible to consider race if it makes possible "a university's obtaining the benefits which flow from enrolling an ethnically diverse student body." However, citing Wygant, Croson, and Justice Powell's other holdings in Bakke, he found that a college would need to show specific evidence of its own prior discrimination; it could not simply invoke the need for more minority attorneys to serve minority communities, for diversifying the bar at large, or for countering discrimination in general.

For a school that hopes to implement an acceptable admissions program, gathering historical data should certainly be a first step in any self-study, but simply amassing statistics is not enough. Trustee policy, institutional goal setting, principles of academic freedom, legislative findings, and other evidence of a college's culture should be developed and used to undergird admissions policy. Nearly one-third of the states have been found either to have operated dual, racially separate public systems of higher education or to have entered into consent decrees with the federal government. A school with such a history should be able to provide substantial evidence of "legislative policy[,] . . . legislative mandates or legislatively determined criteria."

Criticism of affirmative action is likely to continue not because it has a basis in fact but because the transition to a more meritorious and heterogeneous legal profession will inevitably lead to a loss of white privilege, particularly white male privilege. This powerful mythology of displacement seems particularly striking to affirmative action critics, even younger critics who grew up during the more modern era of affirmative action. Graglia's law school class of 1954 at Columbia certainly was different from most classes today, which will have proportionately more white women and people of color. But a class in 1954 was reserved almost entirely for white men, and admissions were not doled out by grades and test scores. A return to those simpler times is not in order, and we are better for the change.

Current admissions programs, as practiced at nearly all law schools, are more thorough and better administered than at any point in legal education. Most admissions officers and financial aid administrators are highly capable and dedicated professionals who sift through thousands of papers and files and attempt to assemble as accomplished and diverse a class as they are able. The sheer crush of applicants -- Georgetown receives over 10,000 applications a year -- means that admissions officers can choose among many exceptionally qualified persons. This is a key point. When they choose from thousands, all of whom have the credentials to do the work, admissions committees are doing exactly what they are charged to do: they are assembling a qualified, diverse student body. Bakke sanctions this approach, common sense dictates it, and no anecdotal horror stories or isolated allegations can change this central fact.

In the light of applicable law, research, and reasonable observation, I can only assume that affirmative action detractors are cursing the darkness. Grieving the loss of white male privilege does not suit thoughtful observers. The Dodgers will not return to Brooklyn. I urge an end to this mourning period. We all have more serious work to do in the present.