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Affirmative Action’s Lost Luster

Affirmative Action’s  Lost Luster

What’s different about affirmative action this year? Despite some major decisions recently made and some others that are coming up, the issue hasn’t been high on the political radar screen. The last decade saw affirmative action policies in higher education undergo serious retrenchment and heavy political attack from opponents. In 1996, conservative political candidates, emboldened by the results of anti-affirmative action referendums and court decisions, went so far as to seek favor with voters by campaigning actively against affirmative action policies.     
Not so this election year. The issue has diminished politically and been removed from the center of national and local campaigns, according to political and legal experts. Not one anti-affirmative action ballot initiative has emerged in any of the states, contrary to the efforts that prevailed in California in 1996 and Washington state in 1998.
Affirmative action “is not as high a priority,” says Dr. Toni-Michelle Travis, an associate professor of public and international affairs at George Mason University in Fairfax, Va.
Political observers such as Travis say the issue has lost resonance among voters and that opponents have placed far less emphasis on it this year than in the past five years. 
But although it has failed to capture voters’ attention as a political issue, many see the federal courts as a more immediate threat to race-
sensitive policies in college and graduate school admissions. Affirmative action foes cheered a recent federal court decision in Georgia — likened to the 1996 ruling in the Hopwood vs. Texas case — that ruled against the use of race in admissions at the University of Georgia (see Black Issues, Aug. 17).
And earlier this summer a Florida judge rejected a challenge by the National Association for the Advancement of Colored People of that state’s race-neutral admissions plan (see Black Issues, Aug. 3).
“Those kinds of decisions can diminish the willingness of administrators to go about continuing to implement race-sensitive admissions and financial aid,” says Robert Kronley, senior consultant to the Atlanta-based Southern Education Foundation.   
With two big cases coming up in Michigan this year, Georgia officials in the midst of preparing an appeal and others on the attack regarding some states’ alternative percentage plans, this year will be an important one regarding affirmative action’s fate.    

Percentage Plans
Early in this national election year, the struggle over affirmative action ignited a political firestorm in Florida that seemed likely to become a hot issue in the presidential race. An executive order plan by Florida Gov. Jeb Bush — the brother of Republican presidential nominee George W. Bush — to ban race as a factor in higher education admissions and state contracts sparked major protests led largely by African American activists and elected officials (see Black Issues, March 30).
Instead of relying upon race-factored admissions to ensure diversity in Florida’s public universities, the Bush order, known as the One Florida plan, called for the guarantee of admissions into a state university for high school seniors graduating in the top 20 percent of their class. The plan sparked an outcry among minorities because they feared it would reduce minority access to the Florida system.
Now, much of the One Florida plan has been approved and minority anger has dissipated. The Bush plan, however, did not escape scrutiny by the U.S. Commission on Civil Rights, which criticized it in a study on admissions percentage plans in Texas, California and Florida.
“This plan in Florida … is unacceptable as a substitute for race-conscious affirmative action,” declared Dr. Mary Frances Berry, chair of the U.S. Civil Rights Commission, at a news conference announcing the study.
The study, Toward an Understanding of Percentage Plans in Higher Education: Are They Effective Substitutes for Affirmative
Action?, found partial fault with the One Florida strategy over its lack of specific plans for improving the primary and secondary schools where the bulk of minority students attend. It also criticized the heavy reliance on a tuition voucher program that would provide no assistance to Florida public schools.
“When people say it’s K-12, most people aren’t doing anything to solve the problem,” Berry says of the plan.
In general, the commission also concluded that the percentage plans so far fail to address diversity in graduate schools.
“The major problem with the percentage plans is their inattention to law schools, medical schools and other graduate and professional schools where ending affirmative action is devastating. At the law schools of the University of Texas at Austin, the University of California-Berkeley and the University of California-Los Angeles, African American and Latino enrollment remain well below 1996 figures, which needed increasing, not decreasing. Florida is proposing to voluntarily inflict this harm by ending affirmative action,” according to the study.
Berry has stated that the commission believes that percentage plans, while not an adequate substitute, can be implemented alongside race-conscious affirmative action programs. She says it’s troubling that Florida has abandoned the principle set forth by the Regents of the University of California vs. Bakke decision, that race is a legitimate factor in higher education admissions. 
“We know affirmative action works. Bakke is still good law, so affirmative action is not
illegal,” she says. 
Dr. Gary Orfield, a professor of education and social policy at Harvard University, says Texas public universities have managed to bring up the numbers of undergraduate minority students back to pre-Hopwood numbers. But he notes the Texas plan has neglected minority admissions at graduate schools and middle-class Blacks and Latinos in undergraduate admissions.  
Texas has had significant results because officials there have implemented “lots of outreach into high-poverty school districts,” according to Orfield, also co-director of Harvard’s Civil Rights Project.
Students are getting recruited from high schools which previously had no relationships with the flagship institutions in Texas, he says. However, the recruitment of middle-class Black and Latino students to the UT system has suffered, Orfield notes. 
“There’s been a big migration [of Blacks and Latinos] out to the suburbs, and they’re not getting recruited,” he says. 

Treading Lightly
Despite the Florida controversy, elected officials and political candidates have largely avoided bringing attention to affirmative action in state and national campaigns.
“Basically, politicians do not want to deal with hotly contentious issues,” Berry says.
This is especially true among Republican party candidates and officials, according to observers. 
“I think the Republicans are running away from that issue. They’re trying to keep some distance from [it],” says Lawrence Alexander, a professor of law at the University of San Diego School of Law and an opponent of race-conscious affirmative action.
“It’s seen as an issue that’s volatile and divisive. [Republicans] feel it’s volatile. And politicians shrink away from volatile issues,” he adds.
Dr. Christopher Foreman, a Brookings Institution scholar in governmental studies, says Republican legislators in Congress have backed away from sponsoring bills to ban race-conscious federal policies.
“[President] Clinton and the Republicans have come to a quiet agreement on where the issue should sit at the federal level,” he says. “People have made peace with it, except for those really strong opponents, who in the past managed to get it on state ballots.”
Foreman suggests that Republican skittishness on the issue may only be temporary. He believes referendums are likely to surface soon after this election year.
Anti-affirmative action measures will pass, he says. “The public will be against affirmative action if you put it to a mass vote. It’s not an issue you want to put to a mass vote because [opponents] will say racial preferences, so you definitely want to keep it away from a ballot.”
Nonetheless, this election finds Democrats solid on their support for affirmative action measures. It was telling that Democratic presidential nominee Al Gore mentioned his support of affirmative action during his acceptance speech at the Democratic National Convention, according to observers. And the Gore campaign quickly had vice-presidential nominee Joseph Lieberman assure leading Black Democrats that he supported affirmative action despite having voiced opposition to it in the past (see related story, pg. 9). It is believed that the views of Black and other minority Democrats on affirmative action have considerable sway in the party.
“That’s why [Lieberman] had to be tested on where he came down [on the issue],” George Mason University’s Travis says.

Courting Trouble
If efforts to ban race-conscious affirmative action are faltering at the executive and legislative branches, there’s no question the courts are seen as the venue where affirmative action is most vulnerable. 
That’s why affirmative action supporters and opponents alike are closely watching proceedings in a federal court in Michigan where the University of Michigan and the University of Michigan law school will defend their race-conscious admissions policies against reverse-discrimination lawsuits. 
The trial, involving a White woman denied admission to the University of Michigan, is scheduled for October. The law school will defend itself against a reverse-discrimination lawsuit early in 2001.
Olati Johnson, an attorney with the NAACP  Legal Defense and Educational Fund, represents a group of minority students who are intervening in the undergraduate case. Johnson says the Michigan case will depart from the Hopwood trial in that it has been opened up to allow intervention. With representation by the  NAACP Legal Defense attorneys and other legal groups, the students will have arguments presented that attempt to show their access to higher education would be threatened by a ban on race-conscious affirmative action. “The difference [between Hopwood and Michigan] is that we weren’t allowed to participate in Hopwood,” Johnson says.
Notable public figures, such as former President Gerald Ford and Dr. William Kirwan, the president of Ohio State University, have urged public support for affirmative action policies as a result of the Michigan cases. Officials from General Motors also have voiced public support of affirmative action.
But the decision by a federal judge in Georgia to rule against race-conscious admissions at the University of Georgia has dismayed
affirmative action supporters.
“I think the most significant thing about [the ruling] is that it adopts Hopwood-like principles in another circuit,” Southern Education Foundation’s Kronley says.
“There is a willingness of lower courts and court judges to cast aside a decision of the Supreme Court [over affirmative action] when it’s not done in other areas,” he notes.
These decisions “use language that threatens university administrators with all kinds of sanctions, including awards that expose them to personal financial liability,” according to Kronley.
Kronley says it’s heartening that University of Georgia officials have vowed to
appeal the ruling. “I think the reaction of the university is hopeful. I think we’ve seen commitment coming from the president and the chancellor on this issue,” Kronley says.
University of San Diego’s Alexander
disputes the idea that court decisions similar to Hopwood run counter to the precedent
established by the Supreme Court in the Bakke decision.
Federal judges in Texas, Louisiana and Georgia have not rendered inconsistent
decisions with regard to Bakke, Alexander says. Despite former Justice Lewis Powell’s
opinion that using race as a factor in
admissions was justified, it’s more important to recognize that the majority ruling found a particular case regarding use of race in admissions to be unconstitutional, he says. As a result, the federal courts are free to further restrict the use of or to ban race
admissions outright, Alexander argues.
“[These cases don’t] contradict Bakke. They’re consistent with Bakke,” he says. 

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