Affirmative Action

            We need to be careful when we throw around the emotionally laden term, "affirmative action." When we speak of special efforts by businesses, schools or governments to help people who, as individuals, have been disadvantaged or handicapped economically by their upbringing, we elicit little disagreement. In fact, affirmative action as first defined in the Kennedy years was supposed to mean, "aggressive non-discrimination" (see Roger Clegg, "Beyond Quotas, A Color-Blind Vision for Affirmative Action," Policy Review, May-June 1998, p. 12). However, "affirmative action" has come to mean explicit preferences to individuals (or set asides for contractors) because of race or, sometimes, gender. This is usually justified superficially as compensation for past (ancestral) discrimination. Particularly is the relevant that the Founding Fathers, when they wrote the Constitution, did not at first recognize non-white Americans as equal under the law to Caucasians; so if the Constitution is the law of the land and if original intent is to be taken seriously as doctrine, then the case for remedial measures for racial minorities must be examined out of intellectual honesty. 

            The term may have been more used more loosely in connection with university admissions than with employment. In fact, as a formal legal matter only employers having contracts with the federal government have to develop written affirmative action plans. The legal basis for this requirement consists of Executive Order 11246 (which requires plans for aggressive non-discrimination with respect to race, color, religion, sex, and national origin); The Vocational Rehabilitation Act of 1973 (which deals with handicap and disability), and the Vietnam Era Veterans’ Readjustment Assistance Act of 1974. However, the Civil Rights Act of 1964 and subsequent laws have the effect of holding all private employers accountable for disparate impact or unintentional under-representation of suspect classes (by race, religion, color, sex, and national origin) in their workforces, so employers as a practical legal matter must make good-faith efforts to recruit and promotes minorities.[1]

            Those who advocate affirmative action (as more loosely defined above) do deserve more intellectual respect from conservatives (like me) than they usually get. When someone (a "liberal"??) advocates specific racial preferences, she is saying something like this: "Bill, you are a Caucasian male. As a result, you have enjoyed automatic advantages throughout your life which you did not earn by your own efforts of own which you have remained largely unaware. It is time that you surrender some of this unearned advantage to others who were denied it." I cannot deny some of this. Once, as I passed through an immigration checkpoint in southern Texas, I was waved on by the officer without question once he saw I am white. Another time, I contemplated an employment offer from a black-owned consulting firm that might not have been in business without affirmative action.  The original Constitution legally regarded blacks, usually slaves, as less than full citizens, until the time of the 14th Amendment; and it took until Brown v. Board of Education (1954) to remove the supposed justifications (“separate but equal???”) for segregation that had been justified by decades of reconstruction.

            The mentality that accepts group preferences is a natural result of conventional understanding of history, which often revolves around conflicts (especially wars) and subsequent treaties or agreements between nationalities or other large groups of people, such a native Americans in our own country. History rarely exalts the circumstances of specific individuals; rather it insists that, at any point in time, total resources are limited and must be allocated fairly groups of people. However, this approach sometimes also degenerates into emotional rhetoric, such as the idea that we must disembody the "white male privileged establishment" before oppression can truly be stopped.  Some persons see outright racial preferences (for African-Americans) as justifiable “reparations” for slavery and segregation and other discrimination in the past or even today; whites, it is maintained, start out ahead in line, like sprinters on inside lanes. [On December 28, 2000, the Washington Post discussed the concept of selective "reparations" for blacks due to slavery and segregation, mainly in the form of grants and set-asides.] Others may recognize that philosophically individuals should be considered in relation to their own specific circumstances (“It’s what you do with what you’ve got, as in So Dear to my Heart (1949)), but a practical legal or political world allows this to be accomplished (following the pattern of all of history) by remedies for people in groups.  Reminders of subtle lingering discrimination constantly surface, as in the article “Life Insurers’ Race Bias In Decades Past Affects Policyholders Even Now,” by Scot L. Paltrow, The Wall Street Journal, Dec 26, 2000, in which the value of shares after demutualization of some companies was actually less because of discrimination (as for “social hazard”) decades ago. However, the mechanism in our legal system of class action lawsuits make ideas like group affirmative action preferences or remedies seem defendable to many, and look like a continuation of a tendency of history to deal with disparities between people in identifiable groups based on religion, race, nationality, etc. 

            The Supreme Court (in Bakke, 1978) has said that racial preference considerations (although not outright quotas) are acceptable in certain cases, when race has been a factor in the individual's own life and when race is considered as one of many factors. In 1989 (in City of Richmond v. JA Croson Co) the Court ruled that state or local government "racial preference" programs must meet a "strict scrutiny" test, which limits state-mandated racial distinctions to remedying past discrimination caused by the state itself, implemented in as narrowly-drawn way as possible. In 1995, in Adarand Constructors v. Pena, all federal racial preference programs were ruled as presumptively unconstitutional unless they met a similar strict scrutiny test. (See Todd Gaziano, "The New 'Massive Resistance,'" Policy Review, May-June 1998, p. 22). In general, the Supreme Court has suggested that set-asides and very explicit racial preferences may be acceptable as a near-emergency manner to counter ongoing discrimination. In 1996, the voters of California prohibited racial and gender preferences (although not other preferences such as age) in university admissions and contracting and this legislation was upheld by an appeals court. Voters in Houston, Texas rejected a similar ordinance and business leaders actually came out for moderate use of preferences as a way to maintain productivity and racial peace.

            There are several reasons to oppose numerical preferences by race alone. The first reason is the most obvious, that in certain situations it leads to hideous injustices among the individuals involved. Another reason is that it maintain race-awareness, when we want to encourage a culture where people care less about race and are motivated less by it in personal decisions (such as home purchases). Along these lines we may rightly object to the notion that we must supply black lawyers and doctors to serve black communities; this motivation simply maintains segregationist and separationist mentality that ultimately encourages the kind of unearned privilege we reject! On Sept. 26, 1999, CBS "60 Minutes" presented a story on the absurd lengths to which race-conscious policies can go, however well intended, even with "reverse preferences": Alabama State University, which is largely African-American, has (until 1999) been giving white applicants lower standards for scholarships in order to "integrate." The Center for Individual Rights (CIR) has assisted one African-American student with a lawsuit challenging these policies, and ironically "liberals" see this as a threat to all scholarship programs which attempt to attract minorities.

            But the biggest reason is totally psychological. We want a culture in which people feel they can control their own destinies. (At least, I do!) Race and gender preferences place undue emphasis on the classes to which people belong rather than on their own efforts. They insinuate that we gain our rights only by negotiating privileges for the group to which we belong! They undermine the fidelity to personal responsibility which must accompany individual liberty. Of course, they also may imply that individual African Americans and native Americans could not have made it on their own without preferences, so they have an unintended insulting effect on those persons considered as individuals. A major observation is that African American women seem to be able to compete much more ably on their own in academic and business settings than many African American men. One major factor seems to be cultural values in lower income black families, where young disadvantage black men, living in insular and gang-related communities, see academic performance as giving in to “white” values. Left-wing proponents of remedial preferences sometimes seem insulted by argument appealing to competitive “meritocracy” of  individual African Americans.

            Universities, however, may well articulate a rather counter-intuitive perspective to support preferences. That is, to foster learning in a diverse environment, quotas and racial or ethnic or gender preferences are needed, regardless of the injustice to the individual. This has been an important issue particularly with litigation over the University of Michigan law school. The university, particularly if it is state-funded, is not to be regarded as a human resources office for a future meritocracy (as the campus definitely was during the Vietnam days of draft and student deferments)! However, any university adopting “affirmative action” to achieve deliberate diversity objectives (as opposed to remedying past discrimination) will find itself setting very arbitrary arithmetic standards for “admission preferences” indeed.  The New York Times, on February 23, 2003, carried a report “Doctors, Soldiers and Others Weight in on Campus Diversity,” with arguments for remedial preferences by race offered by the Association of American Medical Colleges and retired military and civilian defense officials, who pointed out the fact that the lack of African Americans in military officer ranks during the Vietnam war was a foundation of major morale and discipline problems within the ranks. Another smaller argument for preferences would be the need to offset the “white bias” in many schools in preferring children of alumni. Again, educational arguments of this sort (emphasizing the need for doctors and lawyers to serve black communities) seem to suggest that some kind of social segregation by race will always remain.

.           Instead, we should emphasis special attention for disadvantaged students and job applicants, regardless or race, gender, or (for that matter) sexual orientation. Nevertheless, affirmative action, perhaps more than any other public policy issue, draws open the question of making policy fair for individuals on their own personal merits as opposed to fair to people considered first as members of conspicuous groups. Indeed, the new paradigm of social justice and ethical behavior must consider how individuals compete with each other individually based partly on their commitments. Even on this idea of basing “preferences” upon economic class rather than race per se, there are major counter-arguments. Law Professor Lino A. Graglia from the University of Texas points out in a letter to The Wall Street Journal, March 17, 2003, that many African Americans gaining law school admissions from preferential policies at schools from Berkeley are not necessarily from disadvantaged backgrounds and that even from economically advantaged backgrounds African American males to not compete well with white and Asian students. “Justices Brennan, White, Marshall and Blackmun defended the use of racial rather than socioeconomic criteria in the Bakke case on the ground that ‘economically advantaged blacks score less well than do disadvantaged whites.’” Why this happens is disturbing enough, but some of the problem may related to cultural bias against academic achievement in the home. Abigail and Stephan Thernstrom recently put out a book, “No Excuses: Closing the Racial Gap in Learning.” It would seem that in some cultures parents communicate to their children the idea that academic achievement comes from “somebody else’s rules.”

            “CNN Presents” had a special on the racial achievement gap on May 16, 2004 (May 27 2004 is the 50th Anniversary of Brown v. Board of Education). The CNN special focused upon Shaker Heights, Ohio (a suburb of Cleveland), and tended to suggest that the achievement gap, even among blacks from middle class and high income families, seems to result from a vicious, self-fulfilling cultural cycle including lower teacher and parental expectations, more television watching, different cultural notions about learning in relation to gender roles, and (to please the libertarians and conservatives) even a sense that government may have intervened too much—private or local interests to set up the best schools in minority neighborhoods are sometimes more effective when left alone by the courts.

Furthermore, African-American populations have a large number of high-school age teens now with neurological learning impairment due to poor parenting (mothers on alcohol or illegal drugs during pregnancy, exposure to lead paint, too much fast-image TV at very young ages, etc). These impairments, often showing up as an apathy towards learning, hostility, or inability for focus on tasks without constant supervision, often lead to special education placements, and this medical observation may also be significant in assessing academic performance by race.  Educators and school systems would need to consider medical factors in placing properly trained teachers (including substitutes) to work closely with such students. 

            In employment, there are less intrusive affirmative action techniques that generally have public support. For example, employers must make a determined effort to reach out to underutilized or under-represented minorities in recruiting, as by advertising in minority publications (not to mention the idea that the government could regard a publication as minority-associated could be viewed as undermining the publication’s public credibility for objective reporting), and might be accountable for disparate impact treatment if, say, they rely exclusively upon on-line recruiting since racial minorities may have less access to the Internet.  Some conservative commentators do support some degree of affirmative action when viewed as “affirmative outreach” or “affirmative access,” and these concepts relate to bringing members of groups (historically disadvantaged “as groups”) to be capable of competing according to the standards of an open market as individuals.  Some people believe that affirmative action (understood this way) has in recent years encouraged companies to depend less on independent consultants, because it would run more risk of disparate impact to use them (unless one goes to temporary help manpower companies which in turn can do the appropriate hiring, but then the “consultants” are often “employees” of these manpower companies).  Another observation is that sometimes minority owned businesses have received preferences in getting government contracts; I interviewed such a firm (Mitchell) for a position in 1988. Some global companies have supported rather strong affirmative action-style “preferences” by race in employment and admissions as a necessity for competing in a global market.

            Proponents of ENDA and other legislation to statutorily protect homosexuals from discrimination often point out that such laws explicitly would not require "affirmative action" style preferences. However, with race the same advocates often argue that some preferences are necessary because without them people, just because of human nature, will at least unconsciously continue discriminating. These are inconsistent positions.

             Y2K presidential candidate and Texas governor George W. Bush throws around a facile term, "affirmative access" which is supposed to give minorities full participation in society without "preferences." But, does such a mechanism really exist? By signing a Texas law guaranteeing admission to Texas state colleges the top 10% of every graduating class, he is still (according to John O'Sullivan, "W.'s Preferences," National Review, July 26, 1999) indirectly supporting mild preferences, because some schools are still largely segregated in practice. The Department of Education, O'Sullivan points out, wants to eliminate the use of test scores when they have disparate impacts on minorities.

               The St. Paul Pioneer Press, in an article by Judith Yates Borger, Sept. 9, 1999 about admissions at the University of Minnesota, lists the following cases as the most critical in the history of "affirmative action."

· 1978, Bakke v. Regents of the University of California. Bakke (white) claimed reverse discrimination in medical school admission. The Supreme Court ruled that an educational institution may use race as one among a number of admission factors, but that it may not set aside quotas.

· A white woman wins a case against the University of Texas law school for admitting a non-white with lower grades. The 5th Circuit agrees with her and the Supreme Court does not take the case.

· A University of Maryland scholarship program reserved for African-Americans is ruled unconstitutional

· The California Board of Regents in 1995 eliminates all race-based preferences in admission, hiring, and contracting, with some drop-off in minority enfrollments at the largest campuses.

· Bowling Green State University, Ky, is sued by a white job applicant who claims he was rejected because of race.

· The University of Georgia is being sued for giving very small mathematical preferences for race (black) in a minority of admissions. The University intends to keep its policy.

George Will weighs in on all of this in his syndicated column, “It’s harder and harder to master the troubling arithmetic of affirmative action” in the March 1, 2001 Washington Post. Will mentions books (by black authors) with opposing views, one by John McWhorter, Losing the Race: Self-Sabotage in Black America, compared to William Bowen and Derek Bok, of The Shape the River. Much of the argument depends upon whether a person sees himself or herself as somehow “self made” or, rather, content with life in some more communitarian sense.  

There is no question that government must act aggressively to end the practice of racial profiling within its own law enforcement agencies.

In December 2002 the Supreme Court announced that it would hear a case regarding racial preferences, with focus on three white students (one on law and two undergraduate) who applied for admission at the University of Michigan. Barbara Grutter was rejected for admission to law school in favor of non-white students who allegedly were less qualified. The University has also added considerable points to application scores of non-whites. This would not necessarily violate the 1978 Bakke decision (against quotas but allowing indirect or case-by-case consideration of race) if there were a compelling state interest in racial diversity (as the University claims) overriding equal protection. (Yet, I have heard some people call Bakke “a jerk” for suing.) One possible out for some state universities in undergraduate schools could be open admissions, at least a community-based campuses as is commonly practiced.  The CNN Law story is at http://www.cnn.com/2002/LAW/12/02/scotus.affirmative.action/index.html.  Former Senate Majority Leader Trent Lott, after his awful gaffe implying support for Dixiecrat segregation at Strom Thurmond’s centennial birthday (remember, Thurmond had said, regarding gays in the military, that “it isn’t natural….”) groveled every chance he had, saying about affirmative action, “I’m for that,” without having any idea what “that” is. Oh, to have fun with those Republicans when they stumble, as did Dick Armey with “Barney Fag.” 

On April 16, 2002, ABC “World News Tonight” presented a story of a new board game, “Life as a Black Man,” by Chuck Sawyer. The game appears to be a very rich path progression, like Monopoly (Parker Brothers) but more complicated with more possible “bad luck” outcomes with card draws that disparately affect African Americans, especially those from ghettos. You can draw “drive by shooting,” die and get put out of the game by sheer bad luck.

A note about native Americans

Living in Minneapolis, I have been duly impressed by the wealth created for the Sioux Mdewakanton Dakota by the Mystic Lake casino. In many parts of the country, gambling may be carried out legally only on native-American owned reservations.  Although this may be the result of obscure legal doctrines about “sovereignty” the practical effect is in some cases a reparative differential opportunity for native Americans. I have always wondered why the capture of land by American colonists and pioneers from native Americans by force did not pose a moral question comparable to slavery, even in terms of modern ideas about property rights.

A brief editorial “Reflections on injustice, inequality,” in the Feburary 28, 2001 Soya Iya Ye Yapi  weighed in on the mainstream paradigm for non-discrimination and social justice when it wrote, “On mainstream American society, justice may be an illusion. But in the real web of life, ownership is the illusion.” As if to say, tribal values are necessary, as a way for a community to provide for needs that individuals can’t possible meet on their own. I visited the Sioux center sixty miles north of Watertown, S.D. and was appalled at the third-world appearance and poverty (and no nearby metropolis to support a large casino).  It’s easy to say that government, in its desire to make “restitution” and to “do good” has created a cycle of dependency, and undermined individual initiative in poorer Indian areas, and perhaps it has offended tribal values as well. It’s only fair to give the Sioux’s own account of this, at http://www.earthskyweb.com/sota.html.  But it suggests a curious cycle of thought. Most societies have had to embrace “tribal” or other community values for its members to survive. Individualism (especially as expressed through property rights) is experienced as a recent development, especially reasonable in an age of personal mobility and personal access to information technology. Conservatives want to constrain individualism with some kind of adherence to family and community values, and liberals quite properly point out the tremendous disparity in wealth and inherited opportunity or past injustice between one group and another, rectifiable only with arbitrary political barter. The cycle goes on and on and on.     

Supreme Court Oral Arguments Held 4/1/2003

The Supreme Court heard oral arguments on April 1, 2003. Justice O’Connor, often a swing vote, noted that race has been considered an allowable consideration factor “in certain contexts” and that some need to restore racial balance has been viewed as an acceptable reason for some admissions policies. After the hearing, Rev. Jesse Jackson said, “without some protection to get into schools, jobs, and contracts, we’re condemned to the bottom of our society.” But why are explicit preferences needed for “protection”? Tim Wheeler wrote a piece in People’s Weekly World (4/5/2003) that shows that many people still look upon outright Affirmative Action preferences as a necessary group “weapon” that presumes that the white “establishment” will always exercise some racial discrimination that needs to be offset. Then, of course, the libertarian asks whether two wrongs make a right.

Linda Greenhouse provides an interesting perspective of the oral arguments in her 4/2/2003 New York Times article, “Justices Look for Nuance in Race-Preference Case.” Justice Kennedy’s questions were right on the edge, ranging from his use of the term “disguised quota” to “individualized assessment” (not “race-neutral alternative”). There was also important discussion of the military service academies, with Justice Ginsberg pointing out that the academies use affirmative action to promote some kind of balance in the officer corps. However Solicitor General Olson answered that he did not believe that the United States Armed Forces believes that black enlisted men will heed only black officers (and this comment has obvious relevance to “don’t ask don’t tell” if that someday reaches the Court). The justices did seem concerned about the national security necessity of maintaining reasonable racial balance in the military.

In the July 5 The Economist, p. 31, “Out of Eden” Brazil used to think it could be color-blind. Alas, no longer” discusses quotas in Brazil, where they are taken for granted as a social justice necessity, to provide numerical measures of resistance to “white monopoly of power and riches.” This article even uses the term “Negro” which is more acceptable today in British publications than in American. And Jeffrey Rosen, in “Getting affirmative action right: Light Footprint,” The New Republic, July 7, 2003, writes that most African-Americans reject Thomas’s arguments: they insist they don’t feel stigmatized by racial preferences” (referring to the Clarence Thomas dissent in the opinions cited below).  It is interesting that much of the world rejects the idea of individual “meritocracy” in looking at affirmative action, and views collective ends, which may facilitate the ability of many minority members to actually live their lives, as more important than notions of individual achievement. A surprisingly similar dichotomy or paradox is developing with the gay marriage debate and traditional family values.

O’Connor also suggested that at some point in the future (perhaps 25 more years), there would be no practical need for affirmative action preferences at all. So Lisbeth B. Schorr discusses the enormous public expenditures that would be required to achieve this result in the January 2004 The American Prospect in “The O’Connor Project: Can we end racial discrimination without affirmative action? Here’s what it will take.” William Raspberry weighs in with an op-ed, “Affirmative Approrach” in the January 5, 2005 The Washington Post by relating Schorr’s proposal to calls for slavery reparations (how would we spend them?), differentiates between ending racial discrimination and ending racism, and notes that many black students at Duke University expected that affirmative action preferences would be needed “forever” because, “our young people may be internalizing a sense of inferiority. They respond by displacing the responsibility for their shortcomings to the white-dominated society. But the implication is that we are permanently damaged goods, in permanent need of special concessions.”

For more about an oral transcript of the arguments, visit http://www.cnn.com/2003/LAW/04/01/scotus.audio/index.html

Again, my own instinct is to oppose race-specific preferences. It seems, however, that people who resent the “meritocratic” arguments against such preferences oppose the “moral” idea of looking at individuals in terms of their ability to achieve (academic or professional) success on their own. This is a point that I hope the Justices comment on.

Check the site for Americans Against Discrimination and Preferences

There was a constructive Letter to the Editor of The Washington Times on November 1, 2003 about the Summer Transition Program (STP) at the College of William and Mary in Williamsburg, VA. The letter by Katie Leach-Kemon and Elizabeth Keener is titled “Counteracting the Inequalities.” There is a related story, “Transition Program Wrongly Interpreted,” by Elizabeth Keener in the William and Mary paper, The Flat Hat, on Oct 17, 2003, at http://flathat.wm.edu/2003-10-17/story.php?type=2&aid=3, and this story responds to a commentary in The Washington Times on Aug. 24.

My own 1961 experience is conveyed athttp://www.doaskdotell.com/content/xchap1.htm

This link contains a discussion about forced busing.

On Dec. 4, 2006 the Supreme Court heard oral arguments about racially influenced school assignment programs in Seattle (high schools only) and Louisville (all public schools). Demonstrations about “forced bussing” were quite emotional. Justice Kennedy was skeptical in the questions. “’The district seems to be telling its students that "everybody can get a meal," but that only certain people can get "dessert," Kennedy said.’  The case is called “Parents Involved in Community Schools Inc. v. Seattle School District” and “Meredith v. Jefferson County Board of Education” (Kentucky).  Story on CNN at http://www.cnn.com/2006/LAW/12/04/scotus.race.ap/index.html , and Robert Barnes, “Court Hears Cases on Schools and Race: Diversity Plans Challenged In Name of Equal Protection,” The Washington Post, Dec. 5, 2006, at http://www.washingtonpost.com/wp-dyn/content/article/2006/12/04/AR2006120400370.html  

On Dec 20, 2006 a US District Court judge in Michigan delayed the implementation of Proposal 2, barring the use of racial preferences in university admissions as part of the state constitution. The text is here. Story, Eric Pfeiffer, The Washington Times, Dec. 21, 2006, p. A4. “Judge delays affirmative action ban; 3 Michigan universities claim inability to meet rules’ deadline”

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Comments: email me at Jboushka@aol.com.   I hope that this perspective is balanced enough.  

Here are some excerpts from the 4/1/2003 oral arguments before the Supreme Court.

Grutter v. Bollinger  Gratz v. Bollinger

JUSTICE SANDRA DAY O'CONNOR A university or a law school is faced with a serious problem when it's one that gets thousands of applications for just a few slots. Where it has to be selective. And inherent in that setting is making choices about what students to admit. So you have an element here that suggests that there are many reasons why a particular student would be admitted or not. And a lot of factors go into it.

So how do you single this out and how are we certain that there's an injury to your client that she wouldn't have experienced for other reasons?

MR. KOLBO Well, Your Honor, first of all, race is impermissible because of the constitutional command of equality. The university is certainly free to make many different kinds of choices in selecting students.

And to look for all kinds of different diversity, experiential diversity, prospective diversity without regard to race, but race because, Your Honor, of the constitutional command of equality, must be beyond the bounds —

JUSTICE O'CONNOR You say that's not — it can't be a factor at all. Is that it? Is that your position that it cannot be one of many factors?

MR. KOLBO Our view, Your Honor, is that race itself should not be a factor among others in choosing students because of the Constitution.

JUSTICE O'CONNOR Well, you have some — some precedents out there that you have to come to grips with, because the Court obviously has upheld the use of race in making selections or choices in certain contexts, for instance, to remedy prior to discrimination in other contexts.

MR. KOLBO Oh, absolutely, Your Honor.

JUSTICE O'CONNOR All right.

MR. KOLBO And I want to be clear about that. We are ——

JUSTICE O'CONNOR Well, but you are speaking in absolutes and it isn't quite that. I think we have given recognition to the use of race in a variety of settings.

MR. KOLBO And we absolutely agree, Justice O'Connor . . .

JUSTICE RUTH BADER GINSBURG Mr. Kolbo, may I call your attention in that regard to the brief that was filed on behalf of some retired military officers who said that to have an officer corps that includes minority members in any number, there is no way to do it other than to give not an overriding preference, but a plus for race. It cannot be done through a percentage plan, because of the importance of having people who are highly qualified. What is your answer to the argument made in that brief that there simply is no other way to have Armed Forces in which minorities will be represented not only largely among the enlisted members, but also among the officer cadets?

MR. KOLBO Justice Ginsburg, I don't believe we have an adequate record in this case from which to conclude that we wouldn't have representation of minorities. The military in the absence of —— . . .

JUSTICE GINSBURG Suppose that were true. Let's take that as the fact, would you still say nonetheless even if it's true that there will be very few, if any, minority members admitted to the military academies, still you cannot use race?

MR. KOLBO I believe race could not be used, Your Honor. I think that other solutions could be looked at addressing the problem why there are not minorities in the military. I note that the United States has not taken a position. We have the brief as Your Honor has mentioned from several individuals, the United States has not taken a position in this case, the military academies have not taken a position.

JUSTICE JOHN PAUL STEVENS Yes, they have, if the brief is accurate about the regulations, the academies have taken a position?

MR. KOLBO As I understand it, Justice Stevens, the briefs are filed on the behalf of individuals.

JUSTICE STEVENS I understand that. But they are quoting material that the academies have distributed, which indicate they do give preferences.

MR. KOLBO Well, Your Honor ——

JUSTICE DAVID H. SOUTER Do you challenge the fact that that is a matter of fact?

MR. KOLBO We don't challenge what they say, Your Honor. We're just suggesting — we don't have a record in this case.

JUSTICE SOUTER No, but do you challenge the fact that they are giving the preference?

MR. KOLBO We don't have enough information on it to know whether —

JUSTICE STEPHEN G. BREYER If you can use race as a criterion for spending money, I take it one argument on the other side, which I'd like you to address, is that we live in a world where more than than half of all the minority — really 75 percent of black students below the college level are at schools that are more than 50 percent minority. And 85 percent of those schools are in areas of poverty.

And many among other things that they tell us on the other side is that many people feel in the schools, the universities, that the way — the only way to break this cycle is to have a leadership that is diverse. And to have a leadership across the country that is diverse, you have to train a diverse student body for law, for the military, for business, for all the other positions in this country that will allow us to have a diverse leadership in a country that is diverse.

Now, you're familiar with that argument. But if it is reasonable to use race as a criterion, as a plus for spending money, why isn't it also reasonable to use it as a plus to see that — to obtain that set of objectives that I've tried to summarize in a second that you're very familiar with.

MR. KOLBO Because very simply, Justice Breyer, the Constitution provides the right of — individuals with the right of equal protection. And by discriminating on the basis of race at a point of competition, innocent individuals are being injured in their constitutional rights. That's the distinction between that and simply trying to cast a wider net, recruiting spending money on outreach efforts, a very principal line it seems to me can be drawn between those two things.

JUSTICE BREYER The reason that the injury is more severe to the white person who doesn't get in when that white person doesn't get in because she's not an athlete or he's not a — he's not an alumnus or he's not any of the other things that fits within these other criteria? What is the difference there is?

MR. KOLBO The difference is the Equal Protection Clause, Your Honor. It does not apply to alumni preferences in scholarships. It applies to race. . . .

MR. OLSON The Michigan law school admissions program fails every test this Court has articulated for evaluating governmental racial preferences. First, it is ——

JUSTICE STEVENS General Olson, just let me get a question out and you answer it at your convenience. I'd like you to comment on Carter Phillips brief. What is your view of the strength of that argument?

MR. OLSON Well, I'm not sure ——

JUSTICE STEVENS That's the one about the generals and about the military academies.

MR. OLSON I understand — the — our position with respect to that is we respect the opinions of those individuals, but the position of the United States is that we do not accept the proposition that black soldiers will only fight for — black officers or the reverse that race neutral means should be used in the academies as well as other places. And that to the extent that there's any difference in analysis, the Court might consider its position, the position it articulated in connection with the military in Rostker v. Goldberg. But our position with respect to that brief is that ——

JUSTICE STEVENS Your suggestion is that the military has broader latitude than the private university?

MR. OLSON No, I'm suggesting that ——

JUSTICE STEVENS Well, you're pointing to Rostker suggests that.

MR. OLSON Yes, I'm suggesting that the Court will want to look at each of these individual situations according to the circumstances and that may be a factor in that context.

But I started my answer, Justice Stevens, by saying you do not accept the proposition that race neutral means should not be used and employed fully to make sure that the academies are accessible and open and offer opportunities for as many people as possible.

JUSTICE GINSBURG But you recognize, General Olson, that here and now, all of the military academies do have race preference programs in admissions?

MR. OLSON The Coast Guard does not. It's prohibited by Congress from doing so. I do acknowledge, Justice Ginsburg that the other academies are doing so. It's the position of the United States ——

JUSTICE GINSBURG Is that — that's illegal what they're doing?

MR. OLSON Pardon me?

JUSTICE GINSBURG Is it that it is illegal, a violation of the Constitution?

MR. OLSON We haven't examined that and we haven't presented a brief with respect to the specifics of each individual academy. And we would want to take into consideration any potential impact suggested by the Court in the Rostker case. . . .

JUSTICE BREYER So is the Texas plan constitutional? If it's designed solely in order to have a diverse mix in the colleges they take 10 percent, but their motive stated and their purpose is to have diversity in the college?

MR. OLSON Justice Breyer, I don't believe that that is the stated motive of the Texas plan or the California or the Florida plan. Those are intended to open up those institutions to a broader selection, one of the ways in which this Court has accepted the institution such as universities may operate is to make sure that barriers are broken down, accessibility is made more available and that is one very race neutral means of accomplishing that legitimate objective.

JUSTICE SOUTER General, what do you say to the argument that the only reason accomplishes it is because it depends on segregation at the lower level of the schools, otherwise it would not accomplish that?

MR. OLSON No, there is no evidence that it depends upon segregation of the schools in Texas or in any other place. It is a diverse selection of the high schools in that state.

MS. MAHONEY The Solicitor General acknowledges that diversity may be a compelling interest but contends that the University of Michigan Law School can achieve a diverse student body through facially race neutral means. His argument ignores the record in this case.

JUSTICE ANTONY M. KENNEDY I'm not sure — in his brief does he acknowledge that can be a compelling interest?

MS. MAHONEY The brief says that it is one of the paramount interests of government to have diversity in higher education. And it has certainly been the consistent position of the Department of Education for the past years that Bakke is the governing standard, that schools are encouraged to use programs to achieve diversity, because of the important interests it serves for students of all color.

CHIEF JUSTICE WILLIAM H. REHNQUIST Ms. Mahoney, supposing that after our Bakke decision came down, whereas Cal. Davis set aside 16 seats for disadvantaged minorities, and Cal. Davis said we're going to try to get those 16 seats in some way, we're going to try high school graduates, we're going to try socioeconomic and none of the — none of those methods get the 16 seats that they want. Can they then go back and say we've tried everything, now we're entitled to set aside seats?

MS. MAHONEY I don't think so, Your Honor. I think what the Court's judgment in Bakke said and certainly what Justice Powell's opinion said is that it's simply not necessary to do a set aside because a plan like the Harvard plan, which takes race into account as one factor can be used as an effective means to ——

CHIEF JUSTICE REHNQUIST But my hypothesis was, they wanted 16 seats and that plan just won't give it to them.

MS. MAHONEY Well, if the program was designed to have a fixed seats, no matter what the qualifications of the applicant pool, no matter what the disparities between the minority and majority students would be, then I think it's fair to say that that would be a quota.

If that is the nature of the program. But here the record indicates that the law school's program is nothing of the kind.

That what has occurred over the years with this program is that there have been offers that have ranged from 160 to 232 over the course of eight years there have been enrollments that went from 44 to 73. It has been a very flexible program.

JUSTICE SCALIA Ms. Mahoney, I find it hard to take seriously the State of Michigan's contention that racial diversity is a compelling State interest, compelling enough to warrant ignoring the Constitution's prohibition of distribution on the basis of race.

The reason I say that is that the problem is a problem of Michigan's own creation, that is to say, it has decided to create an elite law school, it is one of the best law schools in the country. And there are few State law schools that get to that level.

Now, it's done this by taking only the best students with the best grades and the best SATs or LSATs knowing that the result of this will be to exclude to a large degree minorities.

It is not unconstitutional to do that, because it's — that's not the purpose of what Michigan did, but it is the predictable result. Nonetheless, Michigan says we want an elite law school.

Now, considering created this situation by making that decision, it then turns around and says, oh, we have a compelling State interest in eliminating this racial imbalance that ourselves have created.

Now, if Michigan really cares enough about that racial imbalance, why doesn't it do as many other State law schools do, lower the standards, not have a flagship elite law school, it solves the problem.

MS. MAHONEY Your Honor, I don't think there's anything in this Court's cases that suggests that the law school has to make an election between academic excellence and racial diversity. The interest here is having a ——

JUSTICE SCALIA If it claims it's a compelling State interest, if it's important enough to override the Constitution's prohibition of racial distribution, it seems to me it's important enough to override Michigan's desire to have a super-duper law school.

MS. MAHONEY Your Honor, the question isn't whether it's important to override the prohibition on discrimination. It's whether this is discrimination. . . .

Gratz V. Bollinger

JUSTICE KENNEDY It's one beginning assumption in this area, that there may not be a quota, every — all of the eloquent things you said could be easily met by a quota. That — let's just assume for argument, we cannot do.

I have to say that in looking at your program, it looks to me like this is just a disguised quota. You have a minority student who works very, very hard, very proud of his athletics, he gets the same number of points as a minority person who doesn't have any athletics — that to me looks like an overt quota.

MR. PAYTON Here's how our system works and I believe it's not a quota at all and I can believe — I can simply explain this. The way it works, an application comes in, it is reviewed on the basis — every single application is read in its entirety by a counselor, every single application. It is in fact judged on the basis of the selection index, which has the 20 points for race and 20 points for athletics, but it also has all sorts of other things that it values, in state, underrepresented state, underrepresented county within Michigan, socioeconomic status, what your school is like, what the curriculum that you took at your school is like.

Ruling June 23, 2003

The Supreme Court has decided 5-4 that the University of Michigan Law School can consider race as a factor in admissions.  However the Law School did not have numerical points for race, only subjective consideration.

The Supreme Court has reversed the point system (for race) in use at the University of Michigan undergraduate admissions program. However, it has allowed less specific means to consider race in undergraduate admissions.

Here is a link to the CNN story on June 23.

http://www.cnn.com/2003/LAW/01/17/court.affirmativeaction/

We will supply links to the opinions and simplified HTML text (since they are public domain) as soon as possible.  The Supreme Court Opinion Web site (for opinions in PDF format) is http://www.supremecourtus.gov/opinions/opinions.html

Convenient link to Law School Opinion (Gruter v . Bollinger)

Convenient link to Undergraduate Opinion (Gratz v. Bollinger)

For complete links to and notes for precedent cases the reader should go to findlaw.com or to the supremecourtus.gov site.

On June 28, 2007, the Supreme Court ruled that race cannot be used as a factor in reassigning students among public schools (busing). Blogger entry  The case is Parents Involved in Community Schools v. Seattle School District No. 1 et al.  The Supreme Court opinion is here.  Apparently, there is a difference between forced busing and affirmative action.

 

 

 

                         

                       


[1] Reneckly, Richard G. Human Resources: Emphasizing Practical Problem Solving And Day-to-Day Operating Details. Barron’s, 1997, pp 150-151.