Diverse
or discriminatory? Affirmative action in education remains popular, despite
setbacks Diverse
or discriminatory? Affirmative action in education remains popular, despite
setbacks
By Joan Biskupic USA TODAY
ANN ARBOR, Mich. -- Affirmative action, the nation's much-debated answer to generations of racial injustice, is showing surprising resilience after years of attack by courts and politicians and by conservative-led efforts to vote it down in the polls. With two big cases to be heard soon in federal courts, there are signs that Americans are not ready to abandon programs that favor blacks and other minorities in college admissions and on the job:
* Polls show rising support for affirmative action. More people today (56%, up from 49% in 1995) say such programs are needed to counter bias against minorities and women.
* University of Michigan disputes over race-based policies in admissions have led educators nationwide to declare their support for affirmative action and have drawn a vigorous defense from business giant General Motors and former President Gerald Ford. The Michigan cases will be heard Oct. 23 in a U.S. appeals court in Cincinnati.
* The Bush administration, which many on the political right expected to move swiftly against affirmative action, instead plans to defend a federal highway contracting program that favors blacks, Hispanics and other minorities when it is reviewed by the Supreme Court on Oct. 31.
The administration also has resisted pressure from conservatives to join white students in the Michigan cases testing whether a goal of racial diversity can justify giving preferences to minority applicants. The White House is wary of how an assault on affirmative action would be viewed by the rapidly growing Hispanic population, which the GOP considers key to its expansion. ''A few years ago there was a feeling that an anti-affirmative-action wave was sweeping the country,'' says University of Michigan President Lee Bollinger.
''There's much more support for ethnic and racial diversity now.'' College officials note that bans on race-conscious college admissions in California and Texas in the late 1990s led to dramatic declines in minority enrollment. The number of new black students on California's Berkeley campus, for example, fell from 562 to 191 (out of a total of roughly 8,000 students) in 1998, the first year of the ban. In 1997, the year the University of Texas ended its race-based admissions, the law school enrolled only four black students in its entering class (of a total of 468 students), compared with 31 black student in 1996 (of a total of 488).
The declines led California and Texas to develop programs that sought diversity in other ways, such as admitting a certain percentage of the top students from public high schools. That has boosted minority enrollments, but many college officials remain opposed to ending affirmative action.
A U.S. appeals court ruling in August against a University of Georgia initiative that favored minority applicants heightened the national debate. But that court did not address the constitutional question at the heart of disputes over race-conscious admissions: whether diversity is such a ''compelling interest'' for colleges that it justifies boosting minority students' chances of admission.
That is at the core of the Michigan disputes, which have become a rallying point for college officials who say affirmative action is the key to maintaining diversity on campus. In essence, colleges are pressing the courts to give them a more lenient standard for using affirmative action than the U.S. Supreme Court has set for government contracting. The court has said that racial preferences may be used in contracting only to address documented discrimination.
But it has been close to a quarter-century since the justices set any standard for affirmative action at colleges. In a 1978 case, they implied that the goal of racial diversity could be a justification. ''People do have a somewhat different view of preferences in education than preferences in employment,'' Wayne State University law professor Kingsley Browne says, ''because education is seen as a gateway'' to success in American society. Browne, who has written extensively on the subject, opposes affirmative action of any kind. Polls say yes; courts say maybe
A USA TODAY/CNN/Gallup Poll in August found that 56% of those surveyed favor affirmative action for minorities and women generally; 56% also said they support it specifically for college admissions. Further, 66% of those endorsing affirmative action believe it will always be needed. As the anti-affirmative-action fervor has eased, the nation's courts have split over the issue. The ruling by a U.S. appeals panel in the Georgia case is in line with an appeals court ruling in 1996 that rejected racial preferences at the University of Texas.
Those rulings conflict with one last year by another appeals court that said the University of Washington could consider race in admissions. The Michigan lawsuits have generated interest nationwide because they could help resolve long-standing questions about how far colleges can go to ensure diversity. The two federal trial courts that have heard the cases against the University of Michigan clouded the issue by coming up with opposite rulings.
One judge said the goal of racial diversity is sufficient grounds for making it easier for blacks, Hispanics and Native Americans to be admitted as undergraduates. The other judge went the other way, saying that Michigan's law school unconstitutionally discriminated against whites. Meanwhile, public debate rages over whether such programs, which began during the 1960s, have run their course.
''You can never end discrimination by discriminating in a new way,'' says Todd Gaziano of the Heritage Foundation, a conservative think tank. But Theodore Shaw of the NAACP Legal Defense Fund counters that ''we've had affirmative action in place for only 30 years. That's a relatively brief time for a nation with a history of discrimination and slavery.'' 'We look for the best mix' Begun by President Lyndon Johnson, affirmative action programs grew from the belief that the Constitution guarantees more than just an end to illegal discrimination.
The idea was to provide reparations to people who were part of the group that bears the scars of slavery and bias. At Michigan, officials boost minorities' odds of admission on the theory that racial diversity is central to the academic mission. Michigan, which during the litigation has continued to consider race in admissions, accepts lower grade-point averages and test scores from minority applicants. ''Once we have the pool of everyone who is more or less qualified,'' Bollinger says, ''we look for the best mix for everyone.''
But, asks Barbara Grutter, a white woman rejected by Michigan's law school, is it ''acceptable to discriminate to achieve racial diversity? No.'' ''I remember when women were excluded because people believed it would be better without them,'' says Grutter, 47, of Plymouth, Mich., lead challenger to the law school's admissions policy. Grutter did well on the admissions test, but not well enough for sure acceptance.
If she were a minority it might have been enough: A judge found that Michigan accepts lower scores from such applicants to ensure that 10% of each entering class is minority. He found that discriminatory. Michigan appealed. Grutter says she will keep pressing her case. ''I feel very strongly that I have a right to go through an admissions process that isn't discriminatory.'' How might the Supreme Court resolve the disputes over affirmative action? It's unclear, but one thing is certain: Today's Supreme Court is less supportive of such policies than the high court was during the 1970s and early 1980s.
That court, influenced by liberals such as the late William Brennan and Thurgood Marshall, crafted rulings intended to ensure that blacks had access to college, that fire and police departments hired certain percentages of minorities and that governments set aside contracts for those edged out by whites-only systems. That court also issued the last big ruling on affirmative action in education, a 1978 decision that produced six opinions from the nine justices.
Among them was Lewis Powell's opinion forbidding schools from setting aside a specific number of slots for racial minorities but allowing them to consider race in deciding whom to admit. Powell's opinion in Regents of the University of California vs. Bakke also backed the idea that schools may consider race in admissions to achieve racially diverse classes. But the lack of a consensus behind his rationale has led some judges to question it.
The Supreme Court now led by conservative Chief Justice William Rehnquist has ruled against programs intended to give minorities a boost. Today, five justices consistently vote against such policies: Rehnquist, Sandra Day O'Connor, Antonin Scalia, Anthony Kennedy and Clarence Thomas. Thomas has angered many fellow African-Americans by saying that such programs ''stamp all minorities with a badge of inferiority.''
Some black students say that without affirmative action, they would not have a chance to prove they can compete in a rigorous atmosphere. ''I'd rather be stigmatized and have an opportunity than not be stigmatized and not be here,'' says Kimberly Braxton, president of the Black Student Alliance at Michigan's law school. O'Connor is the architect of the court's rationale in this area. She has said that affirmative action should be temporary, but she hasn't closed the door on such programs.
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