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Affirmative Action’s Uncertain Future

Affirmative Action’s Uncertain Future
Proponents of race-conscious admissions firm on belief, but less confident on whether policy could survive a Supreme Court review
By Diana Abouali

Cambridge, Mass.
Proponents of affirmative action offered compelling arguments for the use of race-conscious admissions at the nation’s colleges and universities at a recent symposium at Harvard Law School. However, the same proponents were not as optimistic when predicting the outcome of a Supreme Court review of affirmative action in higher education should such a case go before the High Court.
The symposium, “Affirmative Action in Higher Education,” sponsored by the Harvard Journal on Legislation, brought together professors, policy-makers, scholars and students to debate the constitutionality of affirmative action and the merits of race-conscious admissions at what turned out to be an engaging, and sometimes heated discussion of race and politics in America’s institutions of higher learning.
Moderating the first panel “Constitutionality: From Bakke to Hopwood, Gratz and Beyond,” Professor Richard Fallon of Harvard Law School alluded to the timeliness of the panel. The University of Michigan is currently fighting two lawsuits (Gratz vs. Bollinger and Grutter vs. Bollinger et al) challenging its use of race in admissions (see Black Issues, Oct. 25, 2001). Many people believe the Michigan case is likely to go the Supreme Court, regardless of the Sixth Circuit Court of Appeals ruling, which is pending.
Gail Heriot, a professor at the University of San Diego School of Law, and Curt Levey, director of Legal and Public Affairs at the Center for Individual Rights, a nonprofit law group based in Washington, voiced firm opposition to the use of race as a criterion for university admission.
Heriot argued that “the case against racial preference is strong” and noted that evidence gleaned from the University of California since the passing of Proposition 209 makes the argument against affirmative action “a sensible one.” While the proportion of minority students admitted to and attending the top-tiered University of California schools, such as UCLA and Berkeley, decreased, the proportion of minorities at less prestigious University of California schools such as those at Riverside or Santa Cruz increased, thus making those campuses more diverse. To Heriot, the increased diversity of the campuses at Riverside and Santa Cruz are the success stories of ending race-preferences in UC admissions policy.
In response to Heriot, one audience member argued that her plan of shunting minorities into less prestigious schools reflected a “putting (minorities) in their place” sentiment.
Levey, whose group is representing the plaintiffs in the Michigan case, noted that while affirmative action’s goal of achieving campus diversity is a valuable one, from a legal and constitutional perspective there is no compelling reason to uphold it as a permissible basis for admissions.
” ‘Diversity’ has become a euphemism for discredited terms like ‘quotas,’ ” Levey says.

‘Mending, not ending’
affirmative action
Despite presenting a somewhat bleak future of affirmative action in higher education, Rep. John Conyers, D-Mich., and Frank Wu, a professor at Howard University School of Law, argued the merits of affirmative action.
Conyers’ comments reflected a deep-seated belief in the value of affirmative action, noting that the benefits of diversity are widespread and affect everyone. In response to the claim that Bakke (Regents of the University of California vs. Bakke, 1978) might provide a problematic framework with which to debate “diversity,” Wu cautioned against the tendency to conceive of and talk about diversity in an abstract sense. In his opinion, diversity needed to be tied directly to race and “to make it concrete.”
Harvard Law professor Richard D. Parker raised questions the Supreme Court, and more specifically Justice Sandra Day
O’Connor, who in his opinion will have the swing vote, could pose if the issue of university admissions did come before it: Did the university seriously consider and study the educational value of diversity? Is the university truly committed to diversity and does it demonstrate it by being transparent in its policies?
Dr. Carl Cohen, professor of philosophy at the University of Michigan, offered the clearest voice of opposition to race-conscious admissions on the second panel “Policy: The Merits of Race-Based Admissions and its Alternatives.” He described the policy as a “catastrophe” and as being “bad for the university and society; and damaging” to the minority communities such policies were designed to help, adding that their potential for poor academic performance will invariably be attributed to their race. Cohen noted that the issue of race has so polarized the campus at the University of Michigan he predicts race riots to erupt there in the near future.
Harvard Law professor Christopher Edley, Dr. Gary Orfield, a professor of education and social policy at Harvard’s Graduate School of Education and Richard Kahlenberg, a senior fellow at the Century Foundation, all argued in favor of continuing affirmative action in one form or another. Nevertheless, an aura of pessimism regarding the ability of race-conscious admissions to survive a Supreme Court reconsideration permeated these panelists’ comments and exchanges.
Edley pointed out that affirmative action is essential in a remedial sense, in addressing overt and subtle racial discrimination and in “dismantling the color caste.” Orfield presented a number of misconceptions that cloud the discussion of affirmative action including the myth that discrimination is over; the misguided notion of a “neutral measure of merit”; and the belief that affirmative action is a zero-sum game. Kahlenberg called for the “mending, not ending” of affirmative action, a reference to the Clinton administration’s approach to the issue.
Both Edley and Kahlenberg offered alternatives to affirmative action. Edley recommended alternatives to affirmative action in admissions policies that would achieve the goal of reducing discrimination and promote inclusiveness and diversity. Kahlenberg hoped that an alternative admissions policy might be based on class and economic status.
As an alternative to affirmative action, California, Florida and Texas have adopted “percentage plans,” which proponents argue strive to achieve the goals of diversity and inclusiveness.
The University of Texas’ percentage plan guarantees automatic admission to every student in the top 10 percent of the graduating class of every high school in Texas to the university of their choice within the University of Texas system.
According to Dr. David Montejano, a history professor at the University of Texas at Austin, the results of the percentage plan have been very encouraging. Minority admissions have been restored to pre-Hopwood levels, and Montejano expects them to eventually exceed them. Yet and still, opponents to the percentage plan approach argue this alternative does nothing to address the lack of diversity in graduate and professional programs.
Just recently, Texas A&M University officials delayed their plans to automatically admit the top 20 percent of graduating seniors from Texas high schools because legal concerns have not been answered in time for admissions this fall.

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