Skin Tight
June 27, 2003
Like Solomon, the Supreme Court’s ruling on the University of Michigan’s affirmative action practices appeared to split the baby in half.
If that’s the case, those who hate affirmative action were clearly left with the diaper changing half. And not many diapers.
As for supporters of affirmative action (and deep in your heart you know you are one of them), what the hell, get the firecrackers and break out the dragon head for the dance.
Affirmative action is alive. The momentum has changed. Affirmative action is constitutional, as is the use of race in college admissions.
But let’s not gloat. It was close.
The court gave a little to both sides of the debate.
By a 6-3 margin, the court rejected the controversial point system used by undergraduate admissions at Michigan. Conservatives complained that giving minorities 20 points was unfair. The court said it was “mechanistic.”
However, by a 5-4 margin, the court upheld Michigan’s law school admissions process which uses race, but in a far less rigid way.
Put them all together, and what counts is the law school decision and the overarching principal about when race can be used.
In her decision, Justice Sandra Day O’Connor left no doubt. She said the Constitution in its Equal Protection Clause “does not prohibit the law school’s narrowly tailored use of race in admission decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body.”
Here’s the phrase we need to get to know: “narrowly tailored.”
Forget the baggy clothes, folks. For the next 25 years, affirmative action’s going to be skin tight.
NO MORE HALF-BAKKE
The rationale was nothing new. Call it Bakke redux. But this time there should be no question. From the very first line of O’Connor’s ruling, Bakke was more than just an echo. It was the very foundation.
Don’t know your Bakke? He’s the white male who in the ’70s fought an admissions process at UC Davis Medical School that reserved 16 out of 100 spaces for minorities.
The key vote was the late Justice Lewis Powell, who invalidated the program but then also reversed a state court injunction barring any use of race whatsoever.
Talk about Solomonic!
Powell was O’Connor’s inspiration for the new ruling. “Powell expressed his view that attaining a diverse student body was the only interest asserted by [the University of California] that survived scrutiny,” she wrote in her opinion to Grutter vs. Bollinger (the law school case). “Powell emphasized that the ‘nation’s future depends on leaders trained through wide exposure to the ideas and mores of students as diverse as this Nation.’ However, he also emphasized that ‘it is not an interest in simple ethnic diversity, in which a specified percentage of the student body is in effect guaranteed to be members of selected ethnic groups,’ that can justify using race.”
The Bakke case made quotas a no-no. And that still stands.
And so does all the rest of it. “Courts have struggled to discern whether Justice Powell’s diversity rationale is binding precedent,” wrote O’Connor. “The Court finds it unnecessary to decide this issue because the Court endorses Justice Powell’s view that student body diversity is a compelling state interest in the context of university admissions.”
“What’s striking is the lack of any new standards,” said Ted Wang, policy director of Chinese for Affirmative Action (CAA). “[The decision] simply re-affirmed Bakke and allows for the use of race as a ‘plus’ factor.”
So if you’re practicing affirmative action, the new rules are like the old rules:
Don’t have quotas.
Consider qualified candidates please. O’Connor’s opinion said affirmative action cannot “insulate” candidates from competition with other applicants.
Narrowly tailor the remedy. Don’t overreach and cure cancer too. Stick to the specific problem at hand.
Look at the individual cases. Don’t use a mechanistic point system like the undergraduate program. Use Harvard’s holistic approach, which Powell amended to the Bakke case.
This last point is especially good at taking away the anti-affirmative wail about group rights versus individual rights, always a bunch of hogwash.
WHAT ABOUT US?
Ah, but what about Asian Pacific Americans, left off the affirmative action map at so many schools for being over-represented.
Here’s the fact. If we cry and demand inclusion at schools that are 50–90 percent white, we should expect objections to schools that approach 50–90 percent APA.
But there are other great schools for those of us who don’t get into the “APA” school. And remember, race is only one factor. Other factors enter into diversity, and taking them into consideration can help to include APAs.
CAA’s Wang listed a number of other considerations, including having a second language spoken at home, overcoming disadvantaged economic situations and geographical balance. Such factors could aid many APAs, especially newer immigrants and refugees.
My fear is that APAs may abandon affirmative action at a time when momentum is changing.
A conservative high court has sent a message to all that the use of race is constitutional.
But some just don’t seem to get it. Ward Connerly insisted on Fox News (where else?) that he was going to take the issue to Michigan and have affirmative action outlawed just as it was by voters in California with Prop. 209 in 1996.
But what is Connerly smoking? The move to eliminate affirmative action ran out of steam after Prop. 209, with only one state (Washington) adopting such a plan in the last seven years.
It’s the reason anti-affirmative action types turned to the courts. They couldn’t win politically. Not worth the pain.
But if Connerly and his ilk want to continue marching down a losing path, they’re welcome to it.
What would be wrong is for APAs to join them after years of benefiting broadly from affirmative action.
Now is not the time to join the anti-affirmative action crowd as their poster children.
One of my favorite lines about affirmative action is from Ramsey Lewis, the jazz pianist who wrote the classic “In Crowd.” He was fond of saying, “When you take the elevator up, don’t forget to send it back down.”
We shouldn’t forget that. The Supreme Court didn’t.
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