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Taking Supreme Action

Taking Supreme Action
Michigan proceedings offer some hope that the U.S. Supreme Court will affirm the use of race in academic admissions, say affirmative action proponents. But critics are more skeptical.
By Ronald Roach


Following the oral arguments heard by the U.S. Supreme Court in the University of Michigan cases earlier this month, affirmative action proponents say the proceedings offered some hope that the court will affirm the use of race in academic admissions.

Reaction to the oral arguments largely focused on the questions and comments of Supreme Court Justice Sandra Day O’Connor given that analysts say her stance on the constitutionality of affirmative action plans at the University of Michigan will prove pivotal to the outcome.

“I think that the government’s argument [that race shouldn’t be considered in admissions] is too extreme for the court,” said Columbia University president Lee Bollinger during a luncheon speech at the National Press Club in Washington, D.C. on April 2.

Bollinger, who was president of the University of Michigan when it was sued for failing to admit three White students, says he’s confident the court will uphold the university’s affirmative action policies. He believes the court will be convinced that race should be considered in order to improve a university’s social and educational atmosphere.

“We think that this is the way that America will be stronger,” Bollinger said. “The people who have learned in this environment will be better able to cross boundaries in society that exist to this day.”

As an example of her openness towards affirmative action, legal analysts have pointed to O’Connor’s question asking plaintiff attorney Kirk Kolbo how being White caused a plaintiff to be denied admission to the University of Michigan. When the lawyer said that race could never be used as a factor, O’Connor responded, “You have some precedents out there that you have to come to grips with.” Later, she added, “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.”

Ted Shaw, the associate director and counsel of the NAACP Legal Defense and Education Fund, attended the oral arguments session and came away from it “cautiously optimistic” that the court would preserve the use of race in higher education admissions. Shaw led the LDF’s team of attorneys that represented 17 African-American and Latino student-intervenors in the Michigan case. The Supreme Court denied the students’ request for argument time, according to Shaw.

“Justice O’Connor’s comments indicated that she didn’t have an absolutist approach to race,” Shaw told Black Issues.

Shaw notes that had the justices allowed oral argument time for the minority student-intervenors the session would have had some focus on the historical origins of affirmative action. “What’s really at stake here is higher education opportunities for African American and Latino students. I think it’s a tragedy that those students were not allowed to have their voices heard in this case,” he adds.

Spencer Overton, a law professor at George Washington University in Washington, D.C., says O’Connor’s statements suggest she may be open to preserving the use of race, though possibly in a more limited fashion than was allowed by the University of Michigan in its undergraduate and law school admissions.

“I think the arguments went as well as it could have gone for those in favor of affirmative action,” Overton says. “It really comes down to O’Connor. She seems to be open to considering diversity as a compelling state interest.”

Legal experts have pinpointed O’Connor as the swing vote in the University of Michigan cases. It is said that Justices Stephen Breyer, Ruth Bader Ginsburg, David Souter, and John Paul Stevens are likely to rule in favor of the University of Michigan. On the other side, Justices Clarence Thomas, Antonin Scalia, William Rehnquist, and Anthony Kennedy are expected to strike down the Michigan plans, and seek to bar the use of race-conscious affirmative action in American life.

“It seems to me [O’Connor’s] going to be uncomfortable with saying an institution can never use race. She may put some limits on that use,” Overton says.

The last time the court visited the issue was 25 years ago, in University of California v. Bakke. That fractured ruling struck down quota systems but left some room for race to be a factor in university admissions.

Conservative scholar and activist Dr. Thomas Wood has written that he believes O’Connor is likely to decide against the University of Michigan, but that the court is unlikely to issue a ruling “that sweeps away all attention to race.” Wood is one of the co-authors of Proposition 209 that resulted in the banning of affirmative action in California.

“O’Connor is troubled by the fact that there is no terminus or end-zone for classificatory schemes like U-Michigan’s that are supported by the diversity rationale. Kolbo was very shrewd to press this point in his closing remarks. O’Connor’s worries on this score should be a major concern to the supporters of preferences,” according to Wood.

An opponent of race-conscious affirmative action, Curt Levey, the director of legal and public affairs at the Center for Individual Rights in Washington, D.C., says the oral arguments went “as well as expected.” The Center for Individual Rights is the nonprofit law firm that has represented the Michigan plaintiffs.

“There’s almost no chance the undergraduate admission plan will be upheld. The law school plan is likely not to be upheld,” Levey predicted.

Levey declined to guess whether the court would sweep away all consideration of race in admissions, or merely restrict it by striking down the Michigan plans but leaving some room for its use. “It could go either way,” he notes.

No Jim Crow

On the day of the arguments, thousands of students, many of who were African American, demonstrated outside the U.S. Supreme Court building and marched to the Lincoln Memorial where they held a rally in support of affirmative action. The court heard back-to-back arguments asking how and whether race can be a factor when colleges and universities choose their students. More broadly, the cases stemming from the University of Michigan’s admissions policies ask wrenching legal and constitutional questions about equality, fairness, opportunity and U.S. history.

The Rev. Jesse Jackson was among speakers outside the court, where the crowd — estimated by police at 5,000 to 7,000 people — was decidedly pro-affirmative action.

“There are more Blacks in prison than in college. Young America, fight back,” Jackson said.

Many people bore signs and chanted slogans supporting affirmative action. Police barricaded the plaza and steps in front of the court, keeping protesters on the sidewalk. “They say Jim Crow, we say hell no,” one group of demonstrators chanted.

“Affirmative action helped me, and I’m here to support students from all over the country,” said Rosa Clemente of New York City. “The Supreme Court needs to do the right thing and support affirmative action,” added Clemente, who described herself as a Black Puerto Rican with degrees from the State University of New York at Albany and Cornell University.

Among other demonstrating students, Rahmael Magny, an African American student from Ryder University in Lawrenceville, N.J., traveled to Washington by a bus chartered from his campus.

“I’m basically here to make a stand. I talk a lot about political issues and how we can better them, and I never get a chance to take action. And today I see a golden opportunity to take action, to come up here and protest and stand for what I believe in. I do believe in affirmative action, and I do believe it’s needed,” Magny said.

Nakiya Turner, a 14-year-old African American girl, came from Detroit to attend the protest rally. “Personally being an African American, it’s bad enough that half of us aren’t in college in the first place, but then to take away our opportunity to get an education is just wrong. It’s like taking away our freedom. It makes me feel like I’m not an American to take away my right to learn,” she said.

In addition to the many students in attendance, Washington, D.C.,- resident Carlos Zapata, a special events coordinator for the League of Latin-American Citizens, said losing affirmative action “stops the Latinos from advancing.”

“It shortens our lead to advancing into the community; we can’t get into the good schools; and people end up thinking less of us, I think. So this is an important case. Taking it out of our laws means taking it out of our grasp,” Zapata said.

The Road to the Supreme Court

In the midst of the heightened media attention preceding the oral arguments before the Supreme Court, proponents of race-neutral admissions and academic outreach plans released proposals and a study touting non-race-conscious affirmative action measures aimed at preserving diversity in higher education.

On March 28, officials at the U.S. Department of Education unveiled a report that highlights race-neutral programs expected to achieve diversity in higher education. Education Department general counsel Brian Jones and assistant secretary for civil rights Gerald Reynolds briefed reporters on “Race-Neutral Alternatives in Post-Secondary Education: Innovative Approaches to Diversity.”

“Americans overwhelmingly agree that diversity in our schools, neighborhoods, workplaces, and community organizations is enormously positive,” Reynolds said in the report.

Jones told reporters that the report was intended to shed light on a broad range of initiatives, including both percentage-based admissions plans and non race-conscious academic outreach programs. He noted that the media typically present race-neutral plans for higher education diversity as percent admission plans when there’s examples of outreach programs that should also gain consideration.

Later that same day, a standing-room only crowd packed into the moot court room at the Howard University School of Law in Washington for the “Affirmative Action Town Hall Meeting.”

A distinguished panel of legal experts, scholars, journalists and activists weighed in on the University of Michigan case specifically and affirmative action in general.

“I’m not a friend or a critic of affirmative action, but a product,” said Charles J. Ogletree Jr., the Jesse Climenko Professor of Law at Harvard University. “Those who oppose affirmative action are opposing a very modest and conservative remedy for centuries of racial oppression.”

Spelman College president Dr. Beverly Daniel Tatum encouraged the audience to invest in HBCUs. “If those schools close their doors to African American students, the HBCUs currently in operation cannot absorb all of those students,” Tatum said. Other members of the panel included Elaine Jones, Director-Counsel of the NAACP Legal Defense and Education Fund; James Forman Jr., University of Michigan law professor; George Curry, NNPA editor in chief and former editor of Emerge magazine; and Julianne Malveaux, economist and Black Issues/syndicated columnist.

On March 31, the New York city-based Century Foundation sponsored a discussion on the future of affirmative action that highlighted a report on the effects of race-neutral alternatives to affirmative action policies at the nation’s most selective 146 colleges. The study, conducted by Dr. Anthony Carnevale of the Educational Testing Service and Stephen Rose of Macro International, examines the impact of several alternatives, including a plan focused on economically disadvantaged students of all races; and a class rank (percentage) plan to admit students with high grades, irrespective of standardized test scores.

The authors showed that, while selective colleges claim to provide preferences to low-income students, on average the top 146 colleges do not have systemic plans for identifying and admitting qualified students from low-income families. The report said the elite schools could admit these students in far greater numbers. The report concludes that the number of colleges that actively recruit minority and economically disadvantaged students has declined significantly over the past decade, particularly by public colleges where the anti-affirmative action movement has had its greatest impact.

Carnevale and Rose find that an economic affirmative action program at the elite 146 colleges would result in a 2-percentage-point decrease in the African American and Latino population, but cause a 28-point increase in economic diversity. Race-blind economic affirmative action at the schools would result in African American and Latino admissions at 10 percent, which is below the current 12 percent rate. In order to avoid the two-point drop, the authors support combining race and class affirmative action.

The court’s ruling, expected by July, could effectively end any state-sponsored affirmative action, or it could rewrite the rules for when race may be a factor in government decisions.

— Ben Hammer and Hilary Hurd Anyaso contributed to this report.

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