A New Angle Of Attack
Three years after the U.S. Supreme Court issued its landmark affirmative action ruling, conservative groups are regrouping and rearming.
By Jamal Watson
When the U.S. Supreme Court ruled in 2003 that colleges and universities could use race as one of several factors in determining admissions criteria, it seemed to some supporters of race-conscious policies that affirmative action — arguably, the most ambitious attempt to rectify the nation’s long history of racial discrimination — had survived legally, at least for the time being. For years, some thought that with the rise of a more conservative Supreme Court, the social program that came into existence in the 1970s and was practiced in some form by most colleges and universities, would quickly disappear.
College administrators who were struggling to find ways to recruit minorities — particularly African-Americans — breathed a small sigh of relief, feeling a little more confident that they would not have to completely abandon the affirmative action programs that had been implemented decades before. However, there were college and program administrators that considered the court’s ruling a little ambiguous, and they proceeded with caution.
Today, many of these same college administrators are facing new threats of lawsuits by conservative groups and White students. This time, the controversy centers on scholarships and social and academic programs that cater exclusively to minority students. Surprisingly, some say, the fierce opposition to such scholarships and programs has come not only from the private sector, but from the federal government.
Additionally, in Michigan, a new effort is underway to eliminate all affirmative action programs, a measure that is being vigorously opposed by the NAACP. Modeled after California’s Proposition 209, Michigan’s Proposal 2, known as the American Civil Rights Initiative, if passed by voters next month, would ban discrimination and affirmative action programs that give consideration to individuals or groups based on race, gender, national origin, etc. All public and state institutions would be affected, including public colleges and universities and even K-12 school districts.
The initiative is being spearheaded by Ward Connerly, an anti-affirmative action activist who convinced California and Washington voters to approve similar measures in the mid-1990s. Opponents of Proposal 2 say a wide range of programs for minority and female students will be jeopardized if the initiative is passed.
They contend that programs like the Morris Hood Jr. Educator Development Program, which offers grants to universities that are focused on increasing the number of minority students in K-12 teaching programs, would be slashed. They also contend that the Michigan/College University Partnership Program, which attempts to smooth the transition of minority students from community colleges to baccalaureate programs, would be disbanded as well.
“The NAACP will not stand by and let Connerly mislead voters in Michigan as he did in California and Washington, where anti-affirmative action campaigns were successful,” says Bruce S. Gordon, the NAACP’s president and CEO.
The civil rights organization is focusing on combating the Michigan proposal through voter education and turnout. In the meantime, they are working with a team of lawyers to fend off possible new legal challenges to existing race-conscious programs. The strategy centers on highlighting the fact that many of these programs are servicing first-generation college students who come from low-income backgrounds. NAACP officials are hopeful that by emphasizing class instead of race and gender, they will successfully head off challenges by conservative groups.
But in a larger sense, the NAACP’s fight is being waged against a much more powerful entity: the Bush administration. The U.S. Departments of Education and Justice have aggressively gone after minority- and gender-focused programs and the institutions that offer them. In some cases, the government has threatened to withhold financial assistance unless the universities change course.
Rather than face the prospect of a protracted legal battle against the government, many colleges have voluntarily abandoned such programs, however reluctantly.
In 2005, Southern Illinois University ended its minority scholarship program after prosecutors from the Justice Department threatened a lawsuit. At the time, prosecutors alleged that SIU “engaged in a pattern or practice of intentional discrimination against Whites, non-preferred minorities and males” when it offered scholarships and fellowships to minorities and women. The college accepted a consent decree with the government and agreed to be monitored for several years, though college officials continue to maintain that they never engaged in discriminatory practices. They concede that minority enrollment has not drastically decreased either, leading some to call into question the effectiveness of such scholarships.
Earlier this year, the Education Department launched an investigation into a male mentoring program at Brooklyn’s Medgar Evers College that was established to help retain Black males at the college. A New York civil rights group claimed that the college, which is part of the City University of New York system, violated the Civil Rights Act when it created a mentoring program that excluded women and non-Blacks.
Dr. Gary Orfield, the director of the Civil Rights Project and a professor of education and social policy at the Harvard Graduate School of Education, says the Supreme Court’s decision in the University of Michigan lawsuits only dealt with admissions. Because they didn’t establish clear guidelines about the legality of race-conscious programs and scholarships, “no one knows what the implications are for having these programs but there is reason to be alarmed and reason to be worried,” he says.
“For the first time, colleges are being threatened by the federal government for having these programs,” says Orfield. “This is the kind of thing that is so regrettable about this current administration. There is a huge crisis in Black, Latino and Native Americans gaining access to college, and here you have the federal government attacking these little programs designed to offset this crisis.”
Since 2003, several dozen colleges and universities have been sued or threatened with lawsuits, leaving many affirmative action officers and college presidents wondering how best to proceed.
“We simply don’t know what is legal and what is not,” says one affirmative action officer at a public institution in the South. “There is not even unanimous consensus among the administration at my school. It is frustrating, and we are just waiting to see what other institutions do.”
Some colleges, however, are being proactive, opting to broaden their programs to avoid becoming targets in the future. For example, at the University of Maryland’s Baltimore County campus, a program that had originally been created exclusively for Black men has been expanded to include non-Blacks as well. The change doesn’t seem to have negatively affected Black male enrollment.
Roger Clegg, president and general counsel of the Center for Equal Opportunity, a conservative think tank based in Virginia, says the time is ripe to eliminate race-conscious social programs — including scholarships and financial aid — altogether.
“I think there is developing an overwhelming consensus that it doesn’t make sense to run programs in a racially exclusive way,” says Clegg. “The law is clear that racially exclusive programs are illegal.”
He says the Supreme Court’s rulings in the two Michigan cases — Grutter v. Bollinger and Gratz v. Bollinger — were far more nuanced than affirmative action supporters are willing to admit.
“The left is making it sound like the Supreme Court gave them everything they wanted, but they didn’t,” says Clegg. While the court said that race can be used as a factor in admissions, he says it also pointed out that every student, regardless of race, must be given individualized attention in the admissions process. “The logic of the Supreme Court decision would apply as well to a non-admission context. It is against the law to refuse to give individualized consideration in admission and other programs.”
Clegg argues that when programs are created exclusively for a racial group, other students are unlikely to seek admission. These programs, he added, are often funded with student fees, tax dollars and government assistance.
But supporters of race-conscious college programs argue that they are needed more now than ever. They cite low enrollment numbers among Blacks and Hispanics and add that such programs help build communities on campuses and are largely responsible for minority retention.
Even as the Justice Department has initiated lawsuits against some colleges and universities that sponsor such programs, others have gone untouched.
For example, several colleges in the University System of Georgia have been operating programs aimed at preparing Black men to attend and graduate from college since 2002. The Georgia Legislature has even funded such initiatives, seemingly putting them at odds with the Bush administration’s tough stance. Private foundations and civic organizations have also helped foot the bill for the initiative, which costs about $300,000 annually.
The wide range of programs that fall under the African American Male Initiative includes the establishment of mentoring programs for Black boys as young as 10.
“Our programmatic efforts are not just on the college-level,” says project director Arlethia Perry-Johnson. She says the program started in response to the lack of Black male college students across the state.
According to Perry-Johnson, the program has yielded clear results. From 2002-2005, Black male enrollment in the university system has increased by 13 percent, from 17,068 students to 19,291 students. She says there have been “no complaints” about the nature of the system’s initiative. But officials at institutions that have been targeted say it’s just a matter of time before Georgia colleges face the same kind of scrutiny.
“I hope that they have a backup plan in case the Justice Department comes knocking at their door,” says an affirmative action officer. “They are cracking down on these programs and, quite frankly, there is nothing we can do except hope and pray that the tide shifts and changes during the 2006 and 2008 elections.”
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