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Fight or Flight

Ted Shaw and other diversity proponents retool while Ward Connerly gloats.

By Jamal Watson

Opponents of higher education affirmative action programs are gearing up to launch their largest attack in recent years. The planned assault comes in the wake of the recent U.S. Supreme Court ruling that severely limited the use of race in K-12 integration plans.

“I believe that we are now poised for a coup de grâce to say that race preferences in the eyes of the public should not be used,” says Ward Connerly, the chairman of the American Civil Rights Institute, a conservative organization based in Sacramento, Calif., that opposes racial and gender preferences.

It was Connerly who orchestrated Proposition 209, a California ballot
initiative that outlawed race and gender preferences in state hiring and university admissions. A similar bill passed in Michigan last year.

Now, he is leading a national effort aimed at placing similar anti-affirmative action initiatives on the November 2008 presidential ballot in Arizona, Colorado, Missouri, Nebraska and Oklahoma.

“This is going to be Super Tuesday for equal rights,” Connerly says. “I think it’s very clear that we are witnessing an end to an era.”

The imminent assault on affirmative action has some wondering why more civil rights groups aren’t actively strategizing a defense. One possible explanation is that the groups simply don’t have the money necessary to mount an aggressive campaign. And a legal climate that appears increasingly hostile to affirmative action, combined with indifference from civil rights leaders and younger generations, could signal that the battle may be a losing one.

Dr. William F. Tate, the president of the American Educational Research Association and a professor of education at Washington University in St. Louis, predicts that Connerly’s well-organized and well-financed effort will likely pass in Missouri.

Connerly’s group has raised millions of dollars and is planning to launch public service announcements in the battleground states aimed at convincing voters to abandon state-funded affirmative action programs.
Further weakening the ability of pro-affirmative action groups to engage in a serious legal fight is the fact that the highest court in the land is solidly conservative and unsympathetic to affirmative action. In the years since its 2003 Grutter v. Bollinger decision affirmed race-conscious admissions at the University of Michigan, the Court has added Chief Justice John Roberts and Justice Samuel Alito, both staunch conservatives. With five conservative-leaning Justices, most observers were accurately skeptical that the Court would rule in favor of race-conscious school segregation remedies in the recent
K-12 cases.

“I think this was an illogical ruling, but no one was really surprised,” says Tate.

It appears that the NAACP Legal Defense and Educational Fund is the lone organization that has made this issue its main priority. Even its parent organization, the NAACP, which is a separate nonprofit group, seems to have taken a back seat in the battle. For decades, the NAACP aggressively took on the issue of unequal educational opportunities, but the major highlight of this year’s annual convention was the symbolic burial — with a casket and pallbearers  — of the “N” word.

Observers generally agree that there appears to be a degree of complacency among some Blacks, particularly the older generation, who wonder whether affirmative action is the most pressing issue facing the community.

“There are a number of issues that we must address, but the first and most important issue is that we have to restore the African-American family,” says Jesse Epps, a veteran civil rights and labor leader who is the founder of the National Union of American Families, a national nonprofit organization based in Philadelphia.

It was Epps who invited the Rev. Dr. Martin Luther King Jr. to Memphis, Tenn., in 1968 to rally on behalf of the striking sanitation workers.

“If we work on all of the problems that the African-American family unit faces, we won’t need affirmative action anymore.

The Black family will be self-sufficient,” he says, adding that the time has come for Blacks to look to other solutions, particularly given the current political climate.

That kind of rhetoric comforts Connerly, who has been waging the battle to dismantle these programs for more than a decade.

“I sense a definite resignation on the part of the establishment,” says Connerly, who has already claimed victory. “It’s clear that the mainstream civil rights people are resigned to the inevitable. If I were them, I wouldn’t spend one penny fighting what they know is coming. Instead, they should be sitting down and negotiating with people like me.”

Theodore M. Shaw, the outgoing director-counsel and president of the NAACP Legal Defense and Educational Fund, says that he isn’t willing to concede defeat just yet.

“We’re not going away now,” he says.

“We are fighting tooth and nail against those like Ward Connerly who are trying to pretend that race no longer matters, and trying to declare ourselves color blind before we have even finished the business of doing all that we can to create a society where race no longer defines not only who and what people are but the quality of their lives.”

In Meredith v. Jefferson County Board of Education and Parents Involved in Community Schools v. Seattle School District No. 1, White parents sued the Louisville and Seattle school districts, respectively, claiming that the districts’ desegregation plans relied too heavily on race in determining which schools students could attend.

In the 5-4 decision, the conservative wing of the U.S. Supreme Court, which includes Roberts, Alito and Justices Antonin Scalia and Clarence Thomas, argued that school districts should be prohibited from using race to integrate schools, a position that is seemingly at odds with the landmark 1954 Brown v. Board of Education decision.

Justices Stephen Breyer, Ruth Bader Ginsburg, David H. Souter and John Paul Stevens maintained that school districts should use race to achieve desegregation, and Justice Anthony Kennedy positioned himself in the middle, claiming that race alone could not be used as the sole factor to achieve the goal of integration.  

Shaw points to Kennedy’s position as reason to remain hopeful.

“The Seattle and Louisville cases are a betrayal of Brown,” he says, adding that Kennedy’s position indicates that he is “struggling with something. And our hope is that he continues to struggle with this and then after struggling with this he comes down in a better place.”

Shaw says the Seattle and Louisville cases, like most reverse discrimination cases, suffer from a structural problem.

“What you essentially get is White plaintiffs suing institutions that are usually controlled by White Americans,” he says. “The plaintiff is a White plaintiff and the institution is the defendant. Black and brown people, whether they are students, or whether they receive contracts, are not partied to the case unless the court allows them to intervene and, even then, intervention is often a marginalized role.”

Shaw argues that minority students are the ones most affected by the rulings, not the plaintiffs or the institutions that are sued. He says the Court denied the LDF’s request to present opening arguments on behalf of minority students in the Louisville and Seattle cases.

“The Legal Defense Fund was the institution that invented school desegregation litigation, that litigated Brown v. Board of Education and many, if not most, of the major desegregation cases that went to the Supreme Court,” Shaw says. “We have more experience with school desegregation than any other entity in this country, and I believe we should have been allowed an opportunity to present arguments on behalf of Black and brown children in these cases of national importance.”

Dr. Ronald Ferguson, the director of the Achievement Gap Initiative, an institute at Harvard University aimed at helping to raise the achievement of all children while narrowing racial, ethnic and socioeconomic gaps, says supporters of affirmative action are somewhat stymied now by the court’s latest ruling.

“They don’t know what to do next,” says Ferguson. He suggests shifting the focus to young students so they won’t need affirmative action programs down the road.

“It’s a better solution in the long run for the political stability of our society,” he says, adding that good parenting, coupled with raising the academic standards for Black youth, may prove fruitful in the future. According to recent research, however, Hispanic students in grades K-12 are closing the achievement gap quicker than Black students.

“It’s going to take a generation or two to turn things around if we get serious now,” Ferguson says. “If Black folks don’t find ourselves moving up faster, we may find ourselves in a position that is really awkward.”

In recent years, Ferguson has surveyed high school students to gauge their views on whether affirmative action is justified if it ensures diversity on college campuses. Across racial lines, about 46 percent of students surveyed — Blacks, Whites and Hispanics — had no opinion on the issue, while about 25 percent of the students agreed and 29 percent disagreed.

“This data tells me that, overall, among young people this is not their issue,” says Ferguson. But he notes that White students — even at the high school level — are more anti-affirmative action than students of color.  

Connerly says that data signals that affirmative action is quickly becoming a thing of the past.

“I knew that we would get to this point, but I did not think it would happen this fast,” he says, referring to 1995, when he initiated Proposition 209. “That’s a short time in the life of a nation.”

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