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[Phil Tajitsu Nash is taking a little break from being AsianWeek’s watchdog on federal politics. This week occasional AsianWeek contributor Frank H. Wu is filing in. Wu is a visiting professor at University of Michigan. He testified in the recent affirmative action lawsuit, on the side of the school.]
This spring, the Supreme Court will consider the affirmative action programs at University of Michigan. It will have an opportunity to rule on the legality of plans meant to create racial diversity in the undergraduate program and the law school at one of the leading public universities in the country, but Asian Pacific Americans, like the rest of the nation, will face the challenge of ensuring that racial segregation does not return to prestigious institutions of higher education.
The nine justices have looked at the issue before, but they divided sharply. In 1978, they issued a decision in the famous case brought by Allan Bakke against UC Davis medical school. Bakke, who was white, had been denied admission — almost certainly because he was an older student — and sued claiming a violation of the Constitution. Everyone is guaranteed “equal protection under the law” under the 14th Amendment, passed as part of the end of the Civil War.
Four of the justices agreed with UC Davis. It had created a program that set aside 16 seats in the entering class for members of underrepresented minority groups. Before they had done so, however, there were virtually no African Americans in the University of California system’s medical schools. The four Justices would have allowed affirmative action at the Davis campus as well as more generally with other schools.
Four of the justices agreed with Bakke. They rejected the contention that there was any difference between “benign” and “invidious” governmental uses of race. They would have treated them as identical. The four justices would have forbidden affirmative action at not only the Davis campus but also other schools.
The late Justice Lewis Powell came up with a compromise. He accepted the consideration of race as a factor in decision-making by colleges, but he rejected any rigid quota.
Since then, in a variety of cases the high court has made clear that it will apply a test called “strict scrutiny” to evaluate any type of government reliance on race. Under this interpretation, if the government — in this case, the University of Michigan as a public school — adopts affirmative action, then it bears the burden of proof on two separate tests. It must pass both tests to win; if it fails either test, then it loses.
First, the University of Michigan must persuade the Supreme Court that racial diversity is what is called a “compelling state interest.” Lower courts that have struck down affirmative action have accepted the notion that overcoming either ongoing racial discrimination or the present effects of past discrimination is an acceptable goal, but in this case there is no evidence that the school is engaging in such discrimination or has done so.
Second, the University of Michigan must show the Supreme Court that its method is “narrowly tailored.” Even if achieving racial diversity is accepted as a compelling state interest, it must be pursued in a manner that infringes as little as possible on the rights of others.
In the Michigan cases, the plaintiffs disagree that racial diversity is a compelling state interest. If they prevail, then it doesn’t matter how well designed a program happens to be — it still cannot be implemented. Indeed, the same groups and individuals who have attacked the Michigan plans have also indicated that they oppose even non-race-based approaches to increasing racial diversity. If they succeed, percentage plans would be off-limits and even outreach would be vulnerable.
Recently, however, the Bush administration decided to file a friend of the court, or amicus curiae, brief. The White House often decides to express its viewpoints by submitting such a brief. In this instance, it has accepted racial diversity as a compelling state interest. However, it also asserted that the University of Michigan has failed to comply with the requirement of “narrowly tailoring.” Instead it has suggested it would support percentage plans such as those adopted in California, Texas and Florida.
The Bush brief may have the same effect as the plaintiff’s arguments, though. The University of Michigan programs represent the range of affirmative action possibilities. The undergraduate plan uses a point system, but the law school plan uses full review of an applicant’s portfolio to enroll a critical mass of underrepresented minorities.
At the undergraduate level, African Americans and Hispanics receive extra points. Whites and APAs who have socioecoomically disadvantaged backgrounds receive the same points. Points also are awarded for various reasons, such as being an alumni child.
At the law school, the institution tries to admit enough African Americans and Hispanics to avoid tokenism. APAs also are eligible for the same consideration if they are not accepted in sufficient numbers without it. The APA enrollment is at about 10 percent.
The lawsuits reflect one of the most difficult public policy debates of the modern era. Whatever the outcome, APAs should remember that they have benefited from many civil rights advances, including affirmative action: they are part of federal government programs, along with state and local programs in areas other than higher education. The hard question for APAs and everyone else is what we will do to open opportunities to people of all racial backgrounds.
Reach Frank Wu at frankhwu@umich.edu.
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