Putting Oklahoma in Context
The great risk as the backlash to affirmative action continues is that schools will decide to give up their goals of racial diversity, not that they will be forced to do so. They may retreat prematurely, in some instances without much regret for programs they had adopted begrudgingly, even though the consensus in Congress and the private sector continues to strongly favor affirmative action and despite the limited reach of adverse judicial rulings.
The recent decisions by the Oklahoma State Regents for Higher Education are only one example of the trend. The regents tried to rationalize their hostility toward race-sensitive measures by mentioning an interest in strengthening pre-collegiate preparation. They are merely presenting a false dilemma between the progress of today and supposed promises for tomorrow.
They cite the United States Department of Education regulations in their deliberations, only to insist that they have independently decided to flout the rules because they are guessing that courts will not enforce them. Essentially, they are unwilling to address discrimination against African Americans and other people of color, for fear that even their meager efforts may attract “reverse racism” claims from Whites.
Meanwhile, California and Texas struggle with the effects of the end of affirmative action, which has the potential for exposing not only the other types of preference but also gross disparities in opportunities. The state of Washington is facing similar challenges.
Across the country, other colleges are openly or secretly revising their affirmative action plans, with a sense of risk aversion more than anything else. The University of Virginia – which is widely considered to be in the elite ranks of so-called “Public Ivies” – has announced a voluntary modification of its race-conscious admissions practices. The University of Massachusetts earlier this year made a similar choice. The University of Georgia is one of the few systems to have come to the contrary conclusion.
There is hope though. The University of Michigan lawsuit, which is pending, will be a much more important test case than the Hopwood decision of a few years ago. The two cases differ because of the defense strategies as well as the procedural maneuvers.
Michigan officials have committed themselves to demonstrating the need for and benefits of affirmative action, relying on extensive research to support empirical claims. Indeed, university President C. Lee Bollinger even recruited former U.S. President Gerald Ford to the cause by showing the former Wolverine football player that his alma mater was complying with applicable legal norms. The NAACP Legal Defense Fund also has been allowed to intervene in the matter, ensuring that powerful arguments the institution itself would be uncomfortable raising nonetheless will be presented. Together, these aspects of the litigation offer the courts an opportunity to return to the tradition set by Brown v. Board of Education, considering the consequences of decisions as much as abstract formal doctrines.
The comprehensive study by Dr. William Bowen and Derek Bok, The Shape of the River, has persuaded some administrators to maintain their course. The reversals of affirmative action opponents such as sociologist Nathan Glazer and economist Dr. Glenn Loury, along with the timely clarifications of Dr. William Julius Wilson, have been perhaps exaggerated but signal the possibility of pragmatic public policies.
The affirmative action debate will never be over, because the real issues of racial justice remain regardless of the status of particular remedies. Because of their crucial role in preparing citizens and sustaining cultures, colleges and universities can and should play a unique role in ensuring equality. Education depends on civil rights.
—Frank Wu is an associate professor and supervising attorney at the
Howard University School of Law
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