Affimative action: Showdown in the Supreme Court

New Crisis, The, Mar/Apr 2003 by Shaw, Theodore M, Boddie, Elise C

When the two landmark lawsuits challenging the use of race-conscious admissions programs for undergraduates and law school students at the University of Michigan (UM) come before the U.S. Supreme Court on April 1, they will become the most significant civil rights cases in the last 25 years.

The Court's 1978 decision in Bakke v. Regents of the University of California banned the use of quotas in college admissions programs but allowed consideration of race as one factor among many determinants. Ever since, conservative groups hostile to even the most limited use of race to increase minority enrollment in higher education have waged a continuous and well-financed war - much of it in the courts - against affirmative action.

The NAACP Legal Defense and Educational Fund (LDF) and other groups that support affirmative action have spent much time in litigation trying to preserve higher educational opportunities for African Americans and other people of color. LDF, as lead counsel (along with the ACLU, the Mexican-American Legal Defense and Educational Fund and a Michigan-based organization called Citizens for Affirmative Action's Preservation), represents African American and Latino students as intervenors in the Michigan undergraduate school case, Gratz v. Bollinger. Student intervenors in the law school case, Grutter v. Bollinger, are represented by other private counsel.

What is at stake? The importance of the Michigan cases to civil rights and the future of African Americans may be exceeded only by the Court's 1954 decision in Brown v. Board of Education. The outcome will affect educational opportunities for this generation of African American students and for many generations to come. And the impact does not stop there. It could affect businesses, jobs and ultimately the very fabric of American society.

In the debate about affirmative action, specifically as it relates to the admissions programs at the University of Michigan, it is important to address some of the lingering misperceptions attached to the subject.

Michigan's admissions policies are not based on quotas:

The University considers each student's academic strength, personal achievement and life experiences, among many other factors, including race. There are no numerically specified or minimum targets. Every applicant competes against the entire class.

Standardized test scores do not determine merit:

Standardized test scores are more reflective of parental income than predictors of innate ability. They are intended only to predict first-year grades and do not have any bearing on student graduation rates. It is undisputed that all students - including African Americans, Latinos, and other people of color who are admitted to the University of Michigan are academically qualified.

If the Supreme Court strikes down the use of race-conscious policies, it could have a catastrophic effect on the admissions of African American and Latino students to both private and public colleges and universities:

After the Fifth Circuit's ruling in Hopwood v. Texas the number of African Americans in the first year class at the University of Texas law school dropped drastically from 29 to 4. In 1997, the year after a referendum banning affirmative action was passed in California, the first year class at Boalt Hall Law School at the University of California at Berkeley had just one African American student.

A federal civil rights statute. Title VI, bars racial discrimination by entities that receive federal funds. Virtually all private colleges and universities receive federal dollars - if the UM cannot consider race in admissions, then Harvard cannot either.

The "Percentage Plans" are fatally flawed and are not a substitute for race-conscious admissions:

When President Bush recently announced his opposition to affirmative action, he touted percentage plans as an effective alternative. These plans - used in Texas, California and Florida - automatically admit a certain top percentage of high school students in the state to public colleges: 10 percent in Texas; 4 percent in California; and 20 percent in Florida.

Minority enrollment under these plans, particularly for African Americans, has not achieved the same levels that it attained under affirmative action. For example, in Texas, at least some of the increase in admissions is due to a rising college-age Black and Latino population.

The success of the percentage plans in creating racially diverse student bodies depends on the continued racial segregation of the state's high schools, which is driven by segregation in housing.

The percentage plans do not affect admissions in private universities or graduate and professional schools. Further, some plans do not affect admissions at public flagship institutions. For example, California's plan does not guarantee admission to the state's premier institutions, such as Berkeley or UCLA. It only provides access to the nine-campus UC System's "second-tier" schools.

Although affirmative action has provided increased access to underrepresented racial minorities, it has had a minimal impact on the chances of admission for the overwhelming majority of White applicants: