Multiple division

In two split decisions, focused around recent events at the University of Michigan, the US Supreme Court has ruled that minority applicants may be given an edge when applying for admissions to universities, but limited the extent to which race can be used in the selection of students.

The net effect of this decision will be to ensure that universities become more and more dependent on court rulings to decide which students they accept and reject. But the ruling is better than it might have been. By leaving the door open to race-based admissions, the Court at least avoided alternative ‘race neutral’ plans to diversify university classes, like the one implemented in Texas and touted by President George W Bush, which would seriously jeopardise academic standards.

Had the court found in favour of the white students currently suing the University of Michigan, the effect, rather than getting rid of affirmative action, would have been to expand its remit to white students. As Edward Blum, legal director of the American Civil Rights Institute, an important backer of the white plaintiffs, said: ‘We’re not out to kill these programmes. What we’re out to do is expand them to everyone.’ (1) Ironically, affirmative action would have been strengthened by a judgement against the University of Michigan’s race-based entrance programmes.

The cases of Grutter v Bollinger and Gratz v Bollinger centred on a suit brought by two white women and one white man against the University of Michigan at Ann Arbor. Jennifer Gratz and Patrick Hamacher were refused admission as undergraduates and Barbara Grutter was refused entry to the Law School. The three plaintiffs allege that their civil rights were breached by the university’s preferential admissions policies.

At Michigan, applicants who are ‘under-represented minorities’ (blacks, Latinos and Native Americans) got an additional 20 points on a 150-point scale used to rate aspiring undergraduates (outstanding athletes also got 20 points, as do impoverished applicants). The Supreme Court ruled against this particular system in a 6-3 decision. However, it ruled in a closer split decision (5-4) in favour of the Michigan Law School’s system, whereby admissions officers strive to admit what they term a ‘critical mass’ of minority students. Currently, minorities make up between 12 and 20 percent of the Law School’s entering classes.

The Center for Individual Rights, a conservative legal group, sponsored Gratz, a 25-year-old policeman’s daughter who had her application to study medicine rejected, and Grutter, a 49-year-old woman rejected by Michigan’s law school. Both claim that minority students with lower academic scores were admitted in their stead. Citing the Fourteenth Amendment and the 1964 Civil Rights Act, the plaintiffs argued that their rights were breached.

The case against Michigan looked solid last year. It took place at a time when many were being critical of affirmative action in education. There had been the 1996 Hopwood decision in Texas, which banned racially preferential policies in state higher education, and the 1996 California Proposition 209, banning racial preferences throughout the state. In December 2002, as the court agreed to hear the white plaintiffs’ appeals, civil rights historian David J Garrow claimed that ‘the death-knell of affirmative action was at hand’.

President Bush weighed in against Michigan in early 2003 in a friend-of-the-court brief, while acknowledging the legitimacy of racial criteria of admissions. ‘It ignores available race-neutral alternatives and amounts to a forbidden racial quota’, the brief said of the undergraduate admissions programme. It was signed by Theodore B Olson, the US solicitor general.

However, Michigan had some powerful friends of its own. Dozens of Fortune 500 companies and, somewhat unexpectedly, 21 retired generals and admirals, including three former military academy superintendents, signed briefs urging the justices to leave the door open to race-conscious policies in university admissions.

More than 60 corporations, including Microsoft, Boeing and American Express, strongly supported affirmative action in a Friend-of-the-Court brief: ‘In the practical experience of the…businesses, the need for diversity in higher education is indeed compelling. Because our population is diverse, and because of the increasingly global reach of American business, the skills and training needed to succeed in business today demand exposure to widely diverse people, cultures, ideas and viewpoints.’ This purported need for diversity prompted a large section of the US establishment to come out in support of Michigan.

Why does affirmative action have such important supporters? The truth is, it may do large institutions more good than its intended beneficiaries. The jury is still out on whether affirmative action has had any effect on racial inequality across the USA. It has certainly failed to restructure race relations, as some who launched the programme 30 years ago had hoped.

The number of black electricians and police officers in the USA tripled between 1970 and 1990 – from 14,145 to 43,276 and from 23,796 to 63,855 respectively. Yet this is likely to be as much a consequence of broader shifts in American society, as it is of affirmative action programmes. A black middle class has benefited from affirmative action in universities but the numbers, relative to the black population, are small.

As to ‘diversity’, there are no proven benefits either in terms of education or in the efficiency of workforces – despite the huge number of times the fairly meaningless term affirmative action is wheeled out. However, in an era where large institutions begin with a ‘mission statement’ – where discourse is infected with concerns about values, corporate personhood, and the relation of individuals to community – commitment to affirmative action provides not just good PR, but an ethical framework for personnel decisions. Any court decision attacking affirmative action would have huge implications for the ‘human relations’ departments within all large American institutions.

But if affirmative action has not done much to help black Americans, neither has it hurt anyone in the way that some of the white plaintiffs and others now claim. Jennifer Gratz feels that her life would probably have been better if she had been admitted to Ann Arbor. ‘To me, this was a failure’, she said, claiming that she lost so much confidence in herself that she gave up her intention to become a doctor, even before she had enrolled as a college freshman.

Yet Gratz is one of tens of thousands of hopeful applicants every year who have their hearts broken after being rejected by their first choice institution. Where is the ‘right’ to a university place of your choice in the American Constitution? It is difficult to sustain the notion that such people suffered dreadfully because of their skin colour. Had Gratz picked herself up and dusted herself off, she might have achieved an honourable medical degree from a different institution. Instead, she made do with a math degree from the University of Michigan in Dearborn and is now a manager at a technology company. Hardly a trudge back to a hopeless ghetto.

This is not to say that affirmative action is benign. The problems with affirmative action are myriad. Perhaps its worst crime has been to replace, rather than augment, a political campaign to integrate black Americans into the mainstream. The federal government, as political scientist Theodore Lowi once pointed out, used to aim to eradicate racial divisions; now it simply indemnifies damages. It is an accountant’s answer to a social problem – and it is divisive, playing African-Americans against whites, and women against men.

But today, the lawsuits against affirmative action seem to be causing more harm than affirmative action itself. One of the original complaints against affirmative action was that it removed free collective bargaining between employer and union, and that it dictated who would be hired, fired, or accepted into a university. Now that affirmative action has become institutionalised, those opposed ask that the state becomes involved in the minutiae of university acceptance in order to insure that it is fair.

This removes nearly all decisions from those who are best equipped to make them – the universities themselves, who must now operate admissions systems with a watchful eye on whether their use of race in admissions are ‘narrowly tailored’. What does that mean? Whatever the courts decide it means.

Some of today’s opposition to affirmative action also poses a threat to academic standards. American universities have long offered places to disadvantaged students, the children of alumni, or to gifted athletes, without harming their overall academic record. They can also accept slightly underqualified black and minority students. But the plan currently in operation in Texas and Florida, which Bush pushed for, forces state universities to accept the top 10 percent of graduates from each high school. As Jeffrey Rosen remarked in the New York Times magazine, that would bring far more underqualified students on to campus, allowing for only one criteria – class rank – to stand.

Test scores now have no place in the public universities of Florida and Texas. Other ways of maintaining a diverse student population without affirmative action have also been disastrous. In 1996, the law school of the University of Texas at Austin began to invite all applicants to write a personal statement about the ways in which they had overcome disadvantages of any kind. Professors who have read the statements describe them as creating a competition of victimhood among applicants who have little to complain about. ‘I was stunned to read in essay after essay about how each of these supremely talented and successful applicants was a victim of some sort’, said Samuel Issacharoff, who reviewed Law School admissions files in the 1990s (2).

That Jennifer Gratz’s case has captured the public imagination shows a sense of frustration within the wider American public. It is notable that the cases dealing with affirmative action in employment, such as Adarand v Pena or Steelworkers v Weber, do not attract the same attention as University of California Board of Regents v Bakke or the University of Michigan cases. This is because, as economist Lester Thurow noted of the trend in mass participation in higher education in the USA in the early 1970s, education has become a ‘defensive necessity’: rather than for bettering one’s self, more and more education is necessary for maintaining one’s present position (3).

There is also a symbolic meaning to higher education. The American Dream of bettering one’s self appears in jeopardy if the aspirations of lower income students are blocked by unfair rules. But affirmative action, which existed at many Ivy League universities from the mid-1960s, did not offend students in the more confident 1960s, when there was no zero-sum perspective dominating American life. An individual student confident of his or her ability will regard failure to get into their first choice university as nothing more than a hurdle to jump over.

Those opposed to affirmative action have, in this case, raised the victimhood stakes. Though affirmative action, cut off from a meaningful political campaign to integrate black Americans into the mainstream, is not worth defending, the campaign against it is far more corrosive. The fact that it left the door open for universities, corporations and even the armed forces to hire, fire and accept whomever they want to, however meaningless the holy grail of ‘diversity’ is, makes the court decision better than it might have been.

(1) Attack on colleges’ aid to minority widens, Greg Winter, New York Times, 30 March 2003

(2) Many are calling for admissions tests to be removed altogether. Harvard Law School Professor Lani Guinier, whose provocative writings on race cost her a high-ranking position in the Clinton administration, is leading the attack on standardised testing. ‘All of the concerns that seem to be collecting around affirmative action – that it gives unfair preferences to certain people, that it is discriminatory – should in fact be directed at admissions systems generally.’ She has cited studies that find little or no correlation between SAT scores and success in college, and other studies indicating that wealthier students do better on standardized tests. ‘Race’, she said, ‘is serving as a convenient distraction. Because if you yell about the whole system, you would have to open up the entire can of worms to see that the people benefiting are not the African American students or Hispanic students but the affluent people’. Cited in ‘The new diversity’, David von Drehle, Washington Post, 18 January 2003.

(3) Thurow explains: ‘As the supply of educated labor increases, individuals find that they must improve their educational level simply to defend their current income positions…. Education becomes a good investment not because it would raise people’s incomes above what they would have been if no one had increased his education, but rather because it raises their income above what it will be if others acquire and they do not. In effect, education becomes a defensive expenditure necessary to protect one’s “market share”. The larger the class of educated labor and the more rapidly it grows, the more such defensive expenditures become imperative.’ Cited in ‘On meritocracy and equality’, Daniel Bell, The Public Interest, Fall 1972.