APA Newsletters

Spring 2001
Volume 00, Number 2

Newsletter on Philosophy and the Black Experience

Articles

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Affirmative Action, Affirmative Access, and "Quota-able" Quotes: Informing
the Debate Over Affirmative Action in University Admissions

Kathryn R.L. Rand
University of North Dakota School of Law

rand@law.und.edu

Steven A. Light
Department of Political Science and Public Administration
University of North Dakota

steven_light@und.nodak.edu

Introduction

Affirmative action pointedly illustrates the tension between a "colorblind" approach to equality in law and policy and social justice imperatives to rectify persistent inequalities. Indeed, affirmative action reflects the contradictions and competing policies that historically have thwarted meaningful racial equality in the United States. The heated debate over affirmative action is a product of the current moment's political discourse, yet, properly contextualized, it provides an opportunity to posture the issue as creating an "all-win" situation.

Nowhere is the affirmative action debate more fervent than in the area of university admissions. In the late 1960s, in an attempt to eliminate and correct for race and gender discrimination in America, the first policies of affirmative action were employed in the workplace and institutions of higher learning. Now, barely a generation later, states with large and growing populations of Latinos and African Americans, such as California, Texas, and Florida, are taking political and legal steps to dismantle affirmative action in university admissions. Many have advocated that federal law and policy should be modeled after the "affirmative access" programs in these states.
At the University of North Dakota, where we both teach, we found that many students were fundamentally misinformed about the role of affirmative action in the university admissions process. Our students are not alone; the general public perception is that race is the dominant or even determinative factor in university admissions, at direct cost to white students.1 Even then-Governor George W. Bush demonstrated a startling unfamiliarity with affirmative action law during the presidential debates when he proclaimed, "If affirmative action means quotas, I'm against it."2

Thus, as part of the University's "Dialogue on Race and Gender Week," we set out to provide information to students in an attempt to clarify the debate. We did not attempt to redefine the terms of the dispute, or even to persuade students that affirmative action is a desirable policy; instead, our purpose was to raise the level of discourse on campus and to defuse arguments based on misinformation. Ultimately, our goal was to spur students to think about what we as a society wish to achieve in terms of racial equality, and how best to achieve it.
In this essay, we set forth many of the ideas and much of the information which we presented at the University of North Dakota. In particular, we focus on current challenges to affirmative action and the "affirmative access" program in Texas as a policy alternative to affirmative action.

Background on Affirmative Action

What is affirmative action? One definition, provided by the U.S. Commission on Civil Rights, is "[a]ny measure, beyond the simple termination of a discriminatory practice, which permits the consideration of race, national origin, sex or disability, along with other criteria, and which is adopted to provide opportunities to a class of qualified individuals who have either historically or have actually been denied those opportunities, and to prevent the recurrence of discrimination in the future."3 This definition provides the guidelines both for hiring practices and for admissions policies at colleges and universities.

In thinking about affirmative action, it is helpful to recall that in many states, African Americans and other people of color were not allowed to attend school with white students until the Supreme Court ruled that "[s]eparate educational facilities are inherently unequal" in Brown v. Board of Education.4 Prior to its victory in Brown, the NAACP successfully had pursued a litigation strategy to challenge segregation in higher education, where prestigious and well-endowed white universities were difficult to replicate in separate institutions for African Americans.5

The 1964 Civil Rights Act, building on Brown's watershed constitutional ruling, made it illegal for employers to discriminate on the basis of race, sex, color, religion, or national origin.6 As part of the ongoing civil rights agenda, President Lyndon Johnson articulated the first affirmative action program in 1965, with Executive Order 11246, which authorized employers to take positive steps to include people of color in their workforce.7 Under President Johnson's affirmative action policy, federal education regulations similarly allowed colleges and universities to take action to include people of color in student bodies, faculty, and staff.8

Affirmative action policies in university admissions soon were challenged in the courts. In 1978, the Supreme Court decided Regents of the University of California v. Bakke.9 In that case, Allen Bakke, a white medical school applicant who was denied admission at the University of California at Davis Medical School, claimed that the school's affirmative action program, which reserved a fixed number of slots for minority applicants, was unconstitutional. A divided Court ruled that the school's affirmative action program violated the Equal Protection Clause. Justice Lewis Powell cast the swing vote, and his opinion described a model affirmative action policy that would withstand constitutional scrutiny: race could be considered in university admissions "as a plus" in order to increase diversity, which was a compelling government interest, as long as specific quotas were not employed.10 Diversity was simply "one element in a range of factors a university properly may consider in attaining the goal of a heterogeneous student body."11 According to Powell, "[t]he diversity that furthers a compelling state interest encompasses a far broader array of qualifications and characteristics of which racial or ethnic origin is but a single though important element."12

The Court also recognized that diversity in the setting of higher education could yield broader societal benefits following graduation. "An otherwise qualified medical student with a particular background - whether it be ethnic, geographic, culturally advantaged or disadvantaged - may bring to a professional school of medicine experiences, outlooks, and ideas that enrich the training of its student body and better equip its graduates to render with understanding their vital service to humanity."13 The Court's ruling in Bakke and Justice Powell's opinion became the accepted benchmarks for affirmative action programs in colleges and universities nationwide.

Affirmative Action in University Admissions Policies

At the level of admissions policy, members of university admissions committees might take race into account when weighing the merits of an application, as admissions officials regularly do for such other background factors as legacies (i.e., children of alumni), athletic ability, geographic diversity, demonstrated leadership qualities, and other criteria that are subjectively weighed in making a determination as to whether a prospective student is worthy of admission and likely to successfully graduate.

Affirmative action, however, is not limited to taking race into account when evaluating an application for admission. An affirmative action policy at a university also might encompass "soft" programs including outreach, such as mailing university information to a minority high school student; recruitment, where once a prospective student of color has been admitted to a university, school officials send the student a letter encouraging her to enroll; and awarding of scholarships for study in fields historically underrepresented by women and people of color, such as mathematics, economics, engineering, and various "hard" sciences.

It is also important to bear in mind what affirmative action does not entail. There are legal limitations on how an institution can apply an affirmative action policy. Under current law, an affirmative action program based on race must withstand the highest level of constitutional scrutiny: the institution must identify a compelling government interest served by the policy and also must show that the policy is necessary to meet that compelling interest.14 All affirmative action programs must apply only to qualified candidates; an institution may not set aside a certain number of seats nor use a different evaluation process for minority candidates.15 In other words, quotas are illegal. Additionally, all affirmative action programs must be limited in duration and periodically reviewed by the institution to ensure that the program "will not last longer than the discriminatory effects it is designed to eliminate."16

What do these standards mean in practice? First, an affirmative action program has to meet the highest standard for constitutionality that the Supreme Court imposes. Second, although many people still believe that affirmative action programs enforce rigid quotas - that schools or employers are required to admit or hire a certain number of women or people of color - or that affirmative action results in the admission or hiring of per se underqualified people of color, the law actually prohibits those circumstances. And third, if the goals of the program are met, then the institution can begin to dismantle the program; in other words, the intent of affirmative action programs is to meet a concrete goal, not to exist indefinitely.

Current Challenges and Changing Policies

For over thirty years - again, just one generation - many American colleges and universities have used race- and gender-sensitive admissions policies to increase the number of women and African American, Latino, and Native American students who have access to higher education.

Such admissions policies also are intended to further the goals of inclusiveness and diversity on campus, as well as in government, among street-level bureaucrats such as law enforcement and firefighting personnel, within business, industry, and high-technology sectors, and within such professional categories as educators, attorneys, and physicians.

Affirmative action policies have received increasingly intense critical scrutiny since the early 1980s, or for more than half the time of their existence. Conservative politicians, academics, and media outlets mostly have focused their critiques on so-called "reverse discrimination" against white males. More recently, affirmative action has met with a flurry of political and legal challenges to its soundness as public policy and its very constitutionality. Ironically, like the NAACP's school desegregation litigation strategy, opponents of affirmative action have focused their efforts on law schools and prestigious institutions of higher learning.

Critics say that using race or ethnicity as a proxy for other forms of meritorious admissions factors has lowered educational standards by admitting "unqualified" students; by extension, qualified students have been denied fair opportunities for admission and are forced to attend less prestigious institutions. Such policies also have been accused of exacerbating racial tensions on campus while lowering the self-esteem of those students of color presumably admitted only under such programs. Moreover, critics point to affirmative action as symptomatic of a larger emphasis on "diversity" - in the workplace and the classroom - that is undeserving of its status as a policy goal.

California

In 1964, the University of California at Berkeley's Law School did not graduate a single African American student. Then in 1968, the California university system implemented affirmative action, allowing race to be a factor in admissions. The changes were dramatic. By 1969, blacks and Latinos made up eight percent of the incoming first-year class.17

In 1995, blacks and Latinos comprised twenty-one percent of Berkeley's law school class. At this point, prompted by the activism of University of California Regent and prominent African American businessman Ward Connerly, the Board of Regents by a 14-10 vote banned any consideration of race in admissions decisions in any branch of the university starting the following year. In 1996, prompted by a carefully orchestrated voter initiative campaign, California voters approved Proposition 209, which codified the Regents' directive and applied it to all public employers in California. The proposition provided that no state institution may "discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity or national origin in the operation of public employment, public education, or public contracting."18

The effects of the Regents' decision were immediate and dramatic. In 1997, the percentage of blacks and Latinos in Berkeley's entering law school class dropped to 5.6 percent, the lowest percentage since 1967 - the year before California implemented affirmative action in university admissions. As the state's premier public law school, Berkeley had enrolled an average of twenty-four African American students each year for the last twenty-eight years. In 1997 it enrolled only one - and he had been admitted the year before but had deferred entering. At the undergraduate level, the percentage of blacks and Latinos was cut in half.19

On November 30, 2000, a unanimous California Supreme Court ruled that "soft" affirmative action - race-conscious recruitment and outreach - was prohibited by Proposition 209.20 Although decided in the context of minority contractors, the court's ruling likely extends to similar programs in higher education. In the wake of Proposition 209, the University of California had increased its efforts to attract students of color, spending $180 million on minority outreach programs in 2000.21

Texas

In 1950, the Supreme Court ruled that the all-white University of Texas Law School, the state's premiere law school, had to admit African American students, as the state's all-black law school was comparatively deficient in terms of faculty, library, and facilities.22 Less than a half-century later, the law school's affirmative action policy was dismantled by the federal courts.

Texas's population of African Americans and Latinos is among the highest in the nation. In support of its role as a public university system, the University of Texas system had adopted an affirmative action policy in accordance with the Bakke case. In 1996, however, in Hopwood v. Texas,23 the Fifth Circuit Court of Appeals declared the admissions program at the University of Texas Law School unconstitutional. Rejecting Justice Powell's conclusion in Bakke that pursuing a diverse student body was a compelling government interest, the Hopwood court held that only a remedial purpose - taking race into account in order to remedy past discrimination - likely would constitute a compelling interest.24 "The use of race, in and of itself, to choose students simply achieves a student body that looks different," the court explained. "[T]he use of ethnic diversity simply to achieve racial heterogeneity, even as part of the consideration of a number of factors, is unconstitutional."25
Contrary to Justice Powell's opinion in Bakke, then, the Hopwood court concluded that a university could not take race into account, even as one of many relevant factors. The court was careful to point out, however, that consideration of factors having a correlation to race, such as first-generation college applicants or socioeconomic status, was permissible.26

Like Proposition 209 in California, the Hopwood decision caused a dramatic decrease in minority enrollment. In 1996, the entering class at the University of Texas Law School had thirty-one African American students. In 1997, following the Hopwood decision, the entering class included only four black students.27
Hopwood's ruling is controversial and is binding law only in the Fifth Circuit, which includes Texas, Louisiana, and Mississippi. In the rest of the country, Bakke remains good law and several courts have declined to adopt Hopwood's reasoning. However, the Supreme Court declined to review Hopwood, and similar challenges to university admissions programs are being mounted in other circuits.

Recently, though, the Fifth Circuit revisited Hopwood, and although it upheld the rationales underlying the opinion, it also reversed a federal district court injunction prohibiting the University of Texas Law School from considering race in its admissions process. The court reasoned that the district court's absolute prohibition ran afoul of the Bakke Court's holding that race is a permissible consideration in some circumstances.28

Washington

In 1998, voters in Washington state approved Initiative 200, which, like California's Proposition 209, prohibits taking race into account in public employment and public education. In the wake of Initiative 200, the president of the University of Washington issued a directive eliminating the use of race as a criterion in its admission process.29 Accordingly, a federal district court dismissed as moot a challenge brought by white students to the University of Washington Law School's admission policy.30

The University of Washington's post-Initiative 200 admissions policy recognizes that "[i]mportant academic objectives are furthered by . . . students…from diverse background[s]" and allows consideration of diversity factors, including "persevering or personal adversity or other social hardships; having lived in a foreign country or spoken a language other than English at home; career goals…; employment history; education background…; evidence of and potential for leadership…; special talents…; geographic diversity or unique life experiences."31 Although the policy omits race per se as a permissible factor, the Ninth Circuit Court of Appeals recently opined that Bakke was still good law and allowed for a race-conscious admissions program.32

Michigan

In 1965, of more than 1,000 students at the University of Michigan Law School, only one was African American. To increase minority enrollment, the law school adopted an affirmative action admissions policy. Now, the University of Michigan is vigorously defending its affirmative action admissions policy against constitutional challenges in federal court. Two cases, one challenging the undergraduate admissions policy and the other the law school's policy, are pending.

Lee Bollinger, the president of the University of Michigan, is an outspoken supporter of affirmative action and has rallied support from virtually every major university and dozens of multinational corporations. The University's core mission, he explained, "is to help students see the world through multiple perspectives… Given the history of this country, there is a different life experience growing up white, growing up black, Hispanic, or Native American. Giving students a chance to cross those boundaries is the same kind of educational experience as sitting down and reading a novel that illuminates for you a perspective on life that you had not seen before."33

Echoing that sentiment is the amicus brief filed by twenty large corporations, including 3M, Microsoft, and Proctor & Gamble, in support of the University's position. "[R]acial and ethnic diversity in institutions of higher education," the brief argues, "is vital to [the corporations'] efforts to hire and maintain a diverse workforce, and to employ individuals of all backgrounds who have been educated in a diverse environment. Such a talented workforce is important to [our] continued success in the global marketplace."34

In Gratz v. Bollinger, the federal district court recently ruled that the University could consider race as a factor in order to increase the diversity of its undergraduate student body. However, the court also held that an older University affirmative action policy was unconstitutional because it effectively had reserved seats for students of color. The court found that "a racially and ethnically diverse student body gives rise to educational benefits for both minority and non-minority students."35

At the time of this writing, trial had just drawn to a close in Grutter v. Bollinger, the challenge to the law school's policy.36 Barbara Grutter, a white student who had been denied admission to the law school, is older than the average applicant and also is a mother - two diversity factors that are taken into account under the law school's current admissions policy.37

The Current and Future Status of Affirmative Action Programs

In response to growing criticisms of existing affirmative action programs, as well as criticisms of the results of dismantling such programs, a few states have adopted what they call "affirmative access" programs, which guarantee spots in the state university system for the top students at each high school. "Affirmative access" is lauded as a compromise between taking race and gender into account in admissions and inflexible merit-based standards which often result in underrepresentation of women and people of color.

"Affirmative Access"

In Texas, then-Governor George W. Bush recently signed into law an "affirmative access" program under which the top ten percent by class rank of high school students are guaranteed a spot in the state's university system. In 1999, Florida Governor Jeb Bush unveiled his "One Florida Initiative," calling for an end to race- and gender-conscious admissions to Florida's public university system.38 The Initiative guaranteed admission of the top twenty percent of Florida's high school students to an institution of higher learning. And in California, the University of California adopted a "four-percent plan." Pennsylvania has considered a proposal to admit the top fifteen percent to state colleges, while Washington state and Michigan have considered and rejected similar plans.39

If "affirmative access" programs in fact are the wave of the future, what results might we expect to see, and where does that leave affirmative action?

First, despite the much-touted rejection of affirmative action in California, Texas, and Florida, it appears that although race no longer is taken into account in university admissions, those states still accept the need for practicing affirmative action through outreach to, and recruitment of, people of color - merely to keep qualified minority applicants from choosing private institutions or going out of state. Thus, with the possible exception of California,40 so-called "soft" affirmative action will continue in these states.

Second, "percent plans" generally appear to increase racial diversity in colleges in those states that have adopted them. In Florida, the first freshman class selected under the top-twenty-percent plan resulted in an increase in minority enrollment by twelve percent. Reflecting the state's diverse population, the incoming class is more than forty percent African American, Latino, Asian American, and Native American. There was an increase in students of color even at Florida's top two universities, the University of Florida and Florida State University.41 In Texas, the top-ten-percent plan has increased diversity in the state's universities. There are more black and Latino freshmen in the class of 2000 than there were in 1996, the year of the Hopwood decision. Three years after Proposition 209 and the change in policy by the University of California Board of Regents, the number of black, Latino, and Native American first-year students in the University of California system has rebounded to the levels when affirmative action was in place.

On the surface, affirmative access plans may sound like a resounding success. However, criticisms are levied by conservatives and liberals alike.

In California and Texas, for example, the rebound in minority student enrollments has not occurred within the state's premier public universities. At California's Berkeley, San Diego, and Santa Barbara campuses, numbers of minority freshmen remain below what they were before affirmative action. And at the University of Texas at Austin, the U.S. Commission on Civil Rights reports that "[u]ndoubtedly, the end of affirmative action has resulted in a significant decline in the overall enrollment of black and Hispanic students."42 Further, the percent plans currently apply only to undergraduate admissions; minority enrollment in law, medical, and business schools has not similarly rebounded and the effect, according to the Commission, is "devastating."43

To conservative anti-affirmative action activist and California Regent Ward Connerly, the enrollment of fewer minority students at California's top schools simply reflects the lesser abilities of students of color, as well as an appropriate redistribution to where such students belong - on less competitive campuses. Others, however, fear that such an effect will lead to a "two-tier" system in California, with students of color being tracked to less-prestigious schools. According to University of California Regent Bill Bagley, the redistribution is not downward, but elsewhere - to private institutions. The best minority high school graduates are choosing to go to Harvard, Yale, or Stanford over Berkeley because of affirmative action programs in place in those schools, as well as the perception that they are not wanted in California's best public universities. Bagley also expresses concern that decreased diversity at schools like Berkeley is detrimental to both students and faculty, as well as to the school's ability to retain its place as one of the top universities in the country.44 In response to such accusations, both California and Texas expanded "soft" affirmative action; that is, outreach and recruitment of minority students.
Another criticism is that affirmative access plans will not compensate for existing societal inequalities. Affirmative access programs may act only as a "Band-Aid" for problems of discrimination and disparate access to resources at the high school level. Central-city and rural school districts will continue to underperform compared to their suburban counterparts, suffering from low levels of funding resulting from low tax bases, inadequate classroom resources, and chronically overworked teachers. The remaining eighty or ninety percent of students at those high schools will continue to have fewer opportunities than will all students at high-performing suburban and often all-white schools. Even the top ten percent of graduates at some low-performing public high schools in Florida will not have the required pre-college credits necessary for university admission because of inadequate curricular offerings.45

In California, students of color denied admission to the state's flagship university in Berkeley have charged that without the equalizing effect of affirmative action, the university's current admissions policy is discriminatory. They argue that the post-Proposition 209 admissions policy grants "unjustified preferential consideration to applicants who have taken certain courses that are less accessible in high schools attended largely by African American, Latino, and Philipino American students" and places "undue and unjustified reliance upon standardized test scores[,]… mak[ing] judgments based on educationally insignificant differences in test scores."46
Further, affirmative access programs will not work everywhere. According to Thomas Kane of Harvard University, the top-percent plans will not work to increase diversity in states where high schools are not already highly segregated.47 For example, if affirmative access programs spread to states like Vermont or North Dakota, where few schools, if any, are filled with minority students, state college campuses would simply look the same as the predominantly white high schools, even with an affirmative access program.

Critics also charge that affirmative access lowers the quality of students. In Texas, freshmen admitted under the ten-percent policy on average have lower SAT scores than past classes. This reflects an influx of students from low-performing high schools, which have predominantly black and Latino populations. Critics are concerned that the policy in effect lowers the standard of the state's universities. Without affirmative action efforts to encourage the success of minority students, and without efforts to equalize high school education, some students simply will be unprepared for college courses.

Similarly, critics are concerned that qualified students may be precluded from admission under affirmative access plans. By guaranteeing admission to a set percentage across the board, students at high schools with traditionally high academic performance, such as suburban, private, or magnet schools, might not fall within the top percentage of their class, yet still have taken a more rigorous or challenging course load, and have higher test scores than do students in underperforming high schools - often rural or urban schools with fewer resources and less funds. Class rank is relative, according to these critics, and the plan will hinder qualified students from being admitted.

Additionally, the set-percentage plans are over-simplistic: they take into account a single factor. By paying attention only to class rank, the policy lacks the nuance needed to draw a truly diverse student body. According to John Swiney, the University of Washington's Associate Director of Admissions, "When we read students' essays, it gives us a much better insight into the qualities of the individual beyond the numbers. Not all students come from a level playing field, and there are many barriers on the road to academic success." Liz Barry, an Associate Vice President at the University of Michigan, agrees. "[The percent plans are] one dimensional, and we want to consider the whole person when making admissions decisions."48

Perceptions of Public Opinion

Two key perceptions of public opinion fuel the political strength of affirmative access as a policy "solution" for the alleged flaws of affirmative action. First is the vehement reaction of many Americans to "reverse discrimination." Proponents of affirmative action, however, take issue with the view that "reverse discrimination" is a pervasive phenomenon. Far from significantly disadvantaging white students, the empirical effects of affirmative action on non-minority students are limited. According to the National Organization for Women, "if half of the people of color who are admitted to schools under affirmative action programs were cut, the acceptance rates of white men would only increase by two percent."49 University of Michigan president Lee Bollinger concurs: "[A] white student's chances of getting in are barely affected by our consideration of race."50

Moreover, "reverse discrimination" claims rest on assumptions of "objective merit" which do not have to be taken at face value. In their comprehensive 1998 book, The Shape of the River, former Harvard University President Derek Bok and former Princeton University President William Bowen examine extensive evidence refuting the argument that minority students with lower test scores would underperform at prestigious schools. Cataloguing information on more than 80,000 undergraduates enrolled at prestigious colleges and universities in 1951, 1976, and 1989, Bok and Bowen find that many students of color not only had higher standardized test scores than the white average, but during their four years in college, performed comparably with white students with higher test scores. Students of color also were twice as likely to engage in community service after graduation than were their white counterparts.51

Building on Bok and Bowen's research, a study conducted of University of Michigan Law School graduates indicated that LSAT (law schools' version of the SAT) scores and undergraduate grade-point averages did not predict achievement after law school. In an intriguing corresponding finding, the study found a "mildly negative relationship" between LSAT scores and performance of community service. Additionally, a majority of Michigan Law School graduates, including about half of white graduates, agreed that the school's ethnic diversity enhanced their educational experience. The study concluded that "the University of Michigan Law School's admissions program has brought into the profession large numbers of minority lawyers who have become financially successful, happy with their careers, and generous with their time through community service."52
Second, many policymakers assume that the majority of Americans are against affirmative action. This is not necessarily the case. One frequently cited poll conducted in 1997 by the anti-affirmative action American Civil Rights Institute (ACRI) indeed indicated that most Americans opposed affirmative action. However, the poll's wording asked whether people supported legislation abolishing "preferences," a politically charged term. In contrast to the ACRI poll, many reputable nonpartisan and nonideological polling firms consistently and repeatedly have found that the American public favors affirmative action programs. For example, in 1996, the National Opinion Research Center at the University of Chicago found that an overwhelming seventy-nine percent of those polled supported affirmative action, accurately defined as "measures for promoting equal opportunity in hiring, promotion, and government contracts without the use of quotas" (emphasis added). These results are consistent with many other polls.53

Indeed, in Florida, one poll touted by Ward Connerly suggested that over eighty percent of Floridians would vote to abolish affirmative action. But another poll, conducted by the nonpartisan Florida Voter Poll, indicated that less than fifty percent of Florida voters supported abolishing affirmative action. What was the difference between the two polls? The wording. The Connerly poll asked whether voters would support prohibiting "discrimination" and "preferential treatment," while the Florida Voter Poll asked whether voters would support prohibiting "affirmative action."54

In a recent nationwide poll commissioned in connection with an academic study designed to reveal Americans' reactions to affirmative action in college admissions, a majority of respondents opposed using race as a "tiebreaker" between equally qualified students. Yet, a majority of respondents supported using criteria beyond grade-point averages and test scores to measure merit, including "consideration of the obstacles and hurdles that a given person has had to overcome to achieve whatever record is presented to the admissions committee."55 As one commentator put it, "people don't want to give the rich daughter of an African American lawyer special treatment. But the poor African American woman from the wrong part of town and the poor school is a different story."56

Conclusion

"Quotas are bad for America. It's not the way America is all about."57 President Bush may be right, but affirmative action is not quotas. Instead, it is an attempt to remedy the underrepresentation of people of color in higher education, in careers requiring college or graduate degrees, and in other employment sectors that may not require such degrees - underrepresentation caused by past institutionalized discrimination in law and policy.
Diversity, on the other hand, is good for America. All students - minority and non-minority alike - benefit from exposure to different perspectives. Students who have overcome discrimination, poverty, or barely adequate schooling demonstrate the perseverance necessary to successfully pursue college and a career. All students who are given the opportunity to negotiate a racially and ethnically diverse campus and move into an equally diverse workplace increase their chances of leading productive and fulfilling lives in an increasingly global community. When realized, diversity in schools, the workplace, and in civic life reflects both demographic realities and the pluralist democratic ideal.

The ongoing erosion of affirmative action is premature. Outright bans on race-conscious law and policy are counterproductive, at best perpetuating the status quo, and at worst producing regressive outcomes. In turn, affirmative access plans may appear beneficially egalitarian and "colorblind," but they pose more problems than they solve. They will not achieve diversity in the public universities of many states, especially at states' flagship universities. They will not correct the underrepresentation of people of color in professions such as law and medicine, professions that historically were closed to non-whites. They ultimately may harm the prestige of public universities, as talented students and faculty choose minority-friendly private universities. Americans agree that numbers don't tell the whole story of a college applicant's abilities, yet top-percentage plans rely on a single number to determine who should be admitted. And the plans do nothing to correct for endemic underperformance in rural and urban high schools.

Affirmative action may be flawed, but affirmative access is unlikely to fix it. The one sure thing in the debate over affirmative action is that the debate will continue, as the law continues to change, and states and the federal government continue to experiment with different policy solutions to the realities of ongoing racial, ethnic, and gender inequality in America.

Endnotes

*. Originally prepared for presentation at the University of North Dakota's "Dialogue on Race and Gender Week," on September 26, 2000, in Grand Forks, ND. The original title of our presentation was "Race and Gender Wars in America," and while the pursuit of equality in our society has often been described in terms which analogize it to war - "fighting" for equal rights, "struggling" for equality, even "battling" the forces of evil - we chose to take a more optimistic and inclusive approach to our discussion. "War" presumes two sides, one winning and one losing, but we believe that issues of race and gender in our society pose the challenge of finding an "all-win" solution. This, we believe, should be the goal of a democracy.

1. See Carol M. Swain, Robert R. Rodgers, and Bernard W. Silverman, "Life After Bakke Where Whites and Blacks Agree: Public Support for Fairness in Educational Opportunities," Harvard BlackLetter Law Journal 16 (2000), 148.
2. During the presidential debate on October 17, 2000, then-Governor Bush responded to a question concerning affirmative action. He indicated that if elected president, he would pursue "good, smart policy, policy that rejects quotas," such as Texas' "affirmative access" plan (discussed below). Demonstrating a misunderstanding of current constitutional law, which prohibits racial quotas, he continued, "I don't like quotas. Quotas tend to pit one group of people against another. Quotas are bad for America. It's not the way America is all about." Then-Vice President Al Gore replied, "[W]ith all due respect, Governor, that's a red herring. Affirmative action isn't quotas. I'm against quotas. They're illegal." Bush further responded, "If affirmative action means quotas, I'm against it. If affirmative action means what I just described, what I'm for, then I'm for it. You heard what I was for." Gore then asked Bush, "Are you for [affirmative action] without quotas?" and Bush replied, "I may not be for your version, Mr. Vice President. But I'm for what I just described to the lady." "Presidential Debates Transcripts," http://www.cnn.com/ELECTION/2000/debates/transcripts/u221017.html, October 17, 2000.
3. Cited in Leadership Conference on Civil Rights, "The Case for Affirmative Action," http://www.civilrights.org, 2000.
4. 347 U.S. 483 (1954).
5. See, e.g., Richard Kluger, Simple Justice: The History of Brown v. Board of Education and Black America's Struggle for Equality (New York: Knopf, 1976), 327-57.
6. Civil Rights Act of 1964, 78 Stat. 241 (codified at 28 U.S.C. § 1447, 42 U.S.C. § 1971, 1975(a)-(d), 2000(a)-(h)).
7. Exec. Order No. 11,246, 3 C.F.R. 339 (1964-65).
8. American Council on Education, "Legal Developments Related to Affirmative Action in Higher Education," (1999), 5-6.
9. 438 U.S. 265 (1978). Civil rights activists have expressed frustration that while Bakke stands as the watershed case on affirmative action, minority interests were not party to the litigation. See Derrick Bell, Race, Racism, and American Law, 4th ed. (New York: Aspen, 2000), 252-56.
10. 438 U.S. at 314-20.
11. Ibid. at 314.
12. Ibid. at 315.
13. Ibid. at 314.
14. Adarand Contractors, Inc. v. Pena, 515 U.S. 200, 235 (1995); see also Bakke, 438 U.S. at 291 ("Racial and ethnic distinctions of any sort are inherently suspect and thus call for the most exacting judicial examination.").
15. Bakke, 438 U.S. at 319-20.
16. Adarand, 515 U.S. at 238 (quoting Fullilove v. Klutznick, 448 U.S. 448, 513 (1980)).
17. Richard Delgado and Jean Stefancic, "California's Racial History and Constitutional Rationales for Race-Conscious Decision Making in Higher Education," UCLA Law Review 47 (2000), 1583.
18. William C. Kidder, "Affirmative Action in Higher Education: Recent Developments in Litigation, Admissions and Diversity Research," (report prepared for Society of American Law Teachers, January 4, 2001), 11.
19. Delgado and Stefancic, 1583-84; see also Ronald Dworkin, "Affirming Affirmative Action," The New York Review of Books, October 22, 1998 (reviewing William G. Bowen and Derek C. Bok, The Shape of the River: Long-Term Consequences of Considering Race in College and University Admissions (Princeton: Princeton University Press, 1998)).
20. Hi-Voltage Wire Works, Inc. v. City of San Jose, 12 P.3d 1068 (Cal. 2000).
21. Kidder, at 12.
22. Sweatt v. Painter, 339 U.S. 629 (1950).
23. 78 F.3d 932 (5th Cir.), cert. denied, 518 U.S. 1033 (1996).
24. Ibid. at 944-46.
25. Ibid. at 945-46.
26. Ibid. at 946.
27. Dworkin.
28. Hopwood v. Texas, 236 F.3d 256 (5th Cir. 2000).
29. See Smith v. University of Washington, 233 F.3d 1188, 1192 (9th Cir. 2000).
30. Ibid.
31. Ibid.
32. Ibid. at 1200-01.
33. Kenneth R. Weiss, "Michigan University President Fights for Affirmative Action Cause," Los Angeles Times, February 2, 2001.
34. Judy Mann, "Just Say Yes to Affirmative Action," Washington Post, October 20, 2000.
35. 122 F. Supp. 2d 811 (E.D. Mich. 2000).
36. Jodi S. Cohen, "U-M Decision Is Weeks Away," Detroit News, February 18, 2001.
37. Weiss.
38. At the same time, Governor Bush promised to lead Florida to "unprecedented diversity and opportunity." Leadership Conference on Civil Rights, "Affirmative Action: Florida," http://www.civilrights.org, 2000.
39. Patrick Healy, "Affirmative Access? Or Simplistic Solution?" Grand Forks Herald, September 3, 2000, 1B.
40. See note 20, above.
41. Rick Bragg, "Minority Enrollment Rises In Florida College System," New York Times, August 30, 2000, A18. But see Kidder, 26 (noting that some contend that while enrollment at Florida's universities generally increased, actual percentages of minority students remained constant or dropped).
42. U.S. Commission on Civil Rights, "Toward an Understanding of Percentage Plans in Higher Education: Are They Effective Substitutes for Affirmative Action?" (April 2000).
43. Ibid.
44. Barbara Whitaker, "Minority Roles Rebound at University of California, But Disparity Persists at Main Campuses," New York Times, April 5, 2000, A11.
45. U.S. Commission on Civil Rights.
46. Ibid.
47. See Healy, 7B.
48. Ibid.
49. National Organization for Women, "Talking About Affirmative Action," http://www.now.org, 2000.
50. Weiss.
51. See generally Bok and Bowen.
52. David L. Chambers, Richard O. Lempert, and Terry K. Adams, "Doing Well and Doing Good: The Careers of Minority and White Graduates of the University of Michigan Law School, 1970-1996," Law Quadrangle Notes 60 (Summer 1999).
53. For instance, the 1997 Gallup Poll Social Audit on Black/White Relations in the United States found that fifty-one percent of whites and eighty-two percent of blacks thought America needed to "increase" or "keep the same" affirmative action programs. Similarly supportive results were found in polls by USA Today/Gallup (1995), Time/CNN (1995), and the Wall Street Journal/NBC (1995). See Leadership Conference on Civil Rights, "A Majority of Americans Support Affirmative Action Programs for Women and People of Color," http://www.civilrights.org, 2000.
54. Terry M. Neal and David S. Broder, "Affirmative Action Tears at Florida GOP," Washington Post, May 15, 1999.
55. Swain et al., 148.
56. Amy Dockser Marcus, "Education: New Weights Can Alter SAT Scores," Wall Street Journal, August 31, 1999, B1 (quoting Anthony Carnevale, vice-president of Educational Testing Service).
57. "Presidential Debates Transcripts."

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Spring 2001 Volume 00, Number 2

Spring 2001
Volume 00, Number 2