Bush Administration Denounces Quotas

WASHINGTON (AP) - President Bush opposes quotas and racial preferences, the White House said Wednesday as Democrats criticized administration plans to oppose a University of Michigan affirmative action program in court.

Such policies ``do not serve to lift up our country and to help the average American,'' presidential spokesman Ari Fleischer told reporters as administration lawyers completed work on their Supreme Court brief.

``Instead, they have a tendency to divide people, to separate people who are deemed to be worthy of something and have it taken away from them not on the basis of merit, but on the basis of simply a quota or something that is driven exclusively by race,'' he said. He did not confirm Bush's stance on the Michigan case.

Behind the scenes, Bush and his advisers discussed how broadly to press their arguments against the university's program, administration officials said on condition of anonymity.

The politically charged issue forced the president to balance the desires of his conservative backers, who staunchly oppose affirmative action, against the potential reaction from the broader electorate if he is viewed as being racially insensitive.

Senate Democratic leader Tom Daschle called it ``a watershed moment for the administration. They have to decide whether they're for civil rights and diversity or not.''

Rep. Dick Gephardt of Missouri, a graduate of the University of Michigan Law School who says he'll seek the Democratic presidential nomination in 2004, plans to file a brief in support of the university's program.

``I believe affirmative action is an essential tool in expanding educational opportunities to minorities,'' he said.

Complicating the president's decision is the fallout from Sen. Trent Lott's remarks that seemed to hold nostalgia for the days when segregation was accepted in parts of the nation. Bush condemned the comments last month, and the Republican Party has been trying to attract more minority voters.

In a sign of the White House's discomfort with the issue, Fleischer spoke of Bush's support of diversity while also discussing the president's plans to commemorate Martin Luther King Jr.'s birthday, increase aid to Africa and funnel more money to black colleges.

Bush planned to make a public statement about the Michigan matter once the brief is filed.

The university's affirmative action question is one of the most-watched issues before the high court this year and could yield the court's most important statement on the use of racial preferences in a quarter-century.

Admissions policies at the University of Michigan award extra points to minority candidates, and the law school uses race as one of many factors that could enhance an applicant's chances. The school said the racial preferences were justified because the school had a legitimate interest in ensuring a diverse student body.

A senior administration official said the president believes race is obviously a consideration as institutions seek more diversity but that goal can be achieved by expanding opportunities to all people - not just one race.

The brief is expected to point to a university admissions program begun in Texas while Bush was governor as well as affirmative action opinions by the Clinton administration that seem to support the president's views.

In Texas, Bush opposed racial preferences in public universities and proposed instead that students graduating in the top 10 percent of all high schools be eligible for admission to state schools. Supporters say that had the effect of continuing a stream of minority students, because some public high schools are nearly all black or Hispanic.

The high court hasn't spoken definitively on the issue since the fractured 1978 Bakke decision, when the court banned racial quotas but still allowed universities to take race into account.

States across the country are wrestling with ways to keep up minority enrollment in public colleges, and several are operating under court orders or negotiated agreements to end discrimination.

It’s hard not to admire how Linda Chavez exposed the following scandal:

http://www.ceousa.org/html/update/update.html

"A detailed, 50-page study released by the Center for Equal Opportunity
concludes that racial discrimination is widespread in Virginia law school
admissions. The report focuses on the three Virginia public law schools --
the University of Virginia, William & Mary, and George Mason University --
and reveals odds favoring black applicants as high as 731 to 1. To put it in
other terms: A student with an LSAT score of 160 and an undergraduate GPA of
3.25 had a 95 percent chance of admission into U.Va. if he or she was black,
but only a 3 percent chance of admission if white, Hispanic or Asian."

Here are some little known facts:

"After graduation recently, 2.5 million American seniors enrolled in either
a two-year or a four-year college. Almost a million did not. They were
overwhelmingly poor, male and white. Much to the surprise of social
scientists who traditionally have looked for educational problems among
minorities, low-income black and Hispanic men are more likely to go to
college right out of high school than white guys. So are young women of any
background, in fact."

Source: http://www.washingtonpost.com/wp-dyn/articles/A22619-2002Oct26.html

Can we refute the following?

Here's Why Affirmative Action Deserves to Survive
BY Professor KIM FORDE-MAZRUI (U.Va. School of Law)
Source: http://www.law.virginia.edu/home2002/pdf/Will_Affirm_Action_Survive.pdf

The last time the Supreme Court addressed whether schools of higher education may consider race in the admissions process, in Regents of the University of California v. Bakke (1978), the Court essentially said, “Sometimes, but not with quotas.” Most experts predict the Court will revisit the issue since the U.S. Court of Appeals for the 6th Circuit last month, in Grutter v. Bollinger, upheld Michigan Law School’s affirmative action policy. With seven new justices on the Court since Bakke, and several decisions that reveal a Court increasingly hostile to affirmative action, Grutter may well end affirmative action in higher education. That would be a mistake. Centuries of slavery followed by another century of legalized oppression created an underclass recognizable by race, which America should not now abandon.

LOOKING TO BAKKE Barbara Grutter challenged the practice at the University of Michigan Law School of considering the race of minority applicants, which Michigan defended as necessary to assemble a student body with diverse experiences and perspectives. The District Court held Michigan’s policy unconstitutional. The 6th Circuit reversed, relying on Bakke. Discerning the meaning of Bakke is complicated by its fractured nature. Bakke invalidated a state medical school’s policy of reserving a percentage of seats for racial minorities. Justice Lewis Powell Jr. concluded that the quota was unconstitutional, but that some attention to race was constitutional to achieve a diverse student body. Four justices joined Powell’s conclusion that the quota was invalid, while Justice William Brennan Jr., joined by three other justices, concurred with Powell that some attention to race was permissible. Thus one majority voted to invalidate the quota, while another voted to permit race as one of several admissions criteria. Further, only Powell endorsed the use of race to achieve diversity, while the other four justices approving the use of race cited remedying past societal discrimination as the appropriate justification. The 6th Circuit concluded that Powell’s opinion was controlling, and that if more recent cases call Bakke into question, it is for the Supreme Court to clarify.

DEVELOPING DOCTRINE The Court left unresolved in Bakke the standard of judicial scrutiny applicable to racially preferential affirmative action. But in City of Richmond v. J.A. Croson Co. (1989), the Court decided that state-sponsored racial preferences are subject to “strict scrutiny,” which means that such policies will be upheld only if they are “necessary” or “narrowly tailored” to further a “compelling” interest. The following year, in Metro Broadcasting Inc. v. Federal Communications Commission (1990), the Court held the federal government to a more lenient standard. But it held in Adarand Constructors v. Peña (1995) that federal affirmative action is also subject to strict scrutiny. As to what purposes are sufficiently “compelling” to justify racial preferences, the case law suggests there are at most two: remedying past discrimination and assembling a diverse group of people in certain contexts, such as educational settings. To remedy past discrimination, a state must identify with “particularity” the discrimination to be remedied, and design the preference to benefit only those persons who were discriminated against and only to the degree necessary to counteract the effect of the discrimination. The Court, since Bakke, has rejected preferences designed to compensate for the effects of unspecified historic or societal discrimination. Thus, in Croson, the Court held unconstitutional a city’s racial quota in awarding construc-

Will Affirmative Action Survive? Grutter v. Bollinger asks the Supreme Court. tion contracts because the policy failed to ensure adequately that the minority firms who benefited had been victims of identified discrimination in the local industry. With respect to whether diversity is sufficiently compelling, the signs are unfavorable. In support of diversity is Powell’s individual opinion in Bakke. What remains of his opinion will probably depend on Justice Sandra Day O’Connor, the swing vote in affirmative action cases. In Wygant v. Jackson Board of Education (1986), a case that preceded Croson, O’Connor cited with apparent approval Powell’s diversity reasoning in Bakke. Subsequently in Croson, however, O’Connor said that racial preferences should be limited to remedying specific discrimination, suggesting that diversity is insufficient. Also, although Metro Broadcasting upheld a racial diversity program, the four dissenting justices, including O’Connor, are now usually in the majority in affirmative action cases. O’Connor’s dissent in Metro Broadcasting thus suggests how the conservative majority would rule today. O’Connor criticized as stereotypical the assumption that racial diversity would contribute to broadcast diversity, and also criticized broadcast diversity as too vague a rationale to justify racial preferences. Similarly, in two other lines of cases, the Court, with O’Connor’s support, has rejected as stereotypical the assumption that race correlates with juror or voter perspective. Michigan denied that its affirmative action policy was intended to remedy past discrimination—most likely because it would have been effectively impossible for the school to design an affirmative action program with that goal. The Court’s requirement that past discrimination be identified with particularity would seem to require that a school identify the time, place and manner of past discrimination, and identify who, among its applicant pool, were victims of such discrimination, and how such discrimination impaired their ability to qualify for admission under race-neutral standards. Realistically, no school of higher education could meet this standard. The only plausible basis on which to justify Michigan’s policy is the one it relied on—to achieve a diverse student body. The problem the university faces is not whether intellectual diversity in an academic setting is important; the problem is in using racial diversity to achieve it. The Court’s skepticism about using race to predict other traits suggests it would reject as “stereotypical” the assumption that racial diversity correlates with intellectual diversity. Furthermore, even were the Court to accept a correlation between race and student perspective, the Court’s demand in other affirmative action cases for definite standards regarding the manner in which race is to be used suggests it would view diversity as unduly vague. The implications of the Court’s ultimate decision in Grutter are not limited to public colleges and universities. Private schools, which represent almost 60 percent of the four thousand institutions of higher education in the United States, may be just as legally vulnerable. Title VI of the Civil Rights Act of 1964 prohibits the same discrimination by all schools receiving federal funds as the Constitution prohibits by public schools. Accordingly, if the Court in Grutter holds unconstitutional Michigan’s racial preferences, then such preferences would also violate the Civil Rights Act when practiced by schools receiving federal funds. Since virtually all private schools depend on federal funding, Grutter could end racial preferences by all schools of higher education. Seeing the writing on the wall, several public colleges have turned to “alternative action,” policies designed to create racial diversity without racial preferences. Some, for example, are experimenting with “class-based” affirmative action in which weight is given to the socioeconomic background of applicants. Two difficulties face these efforts. First, despite their use of race-neutral criteria, such programs may be constitutionally vulnerable because of the race-conscious purpose motivating them. Equally problematic, economic- based preferences are unlikely to admit meaningful numbers of minority students because whites overwhelmingly dominate the pool of economically disadvantaged applicants who are adequately prepared for higher education, especially for the more competitive schools. Indeed, Michigan considered race-neutral alternatives, and rejected them because of their ineffectiveness in achieving racial diversity.

GETTING BEYOND RACE? Grutter presents the Court with a choice: whether to mandate complete colorblindness or, alternatively, to preserve some discretion in schools to create educational environments as diverse as the society their graduates will serve. Racial preferences are certainly regrettable, and America’s history demonstrates how race may be used to oppress. The tragic consequences of that history persist, however, in the stark disparities between racial groups. The average black child born today is exceedingly more likely than the average white child to be raised in poverty, in a broken family, in a community marked by substance abuse, violent crime, and poor quality schools. Unless we assume that along with darker skin a child of color biologically inherits a propensity to fail, to commit crime, or to die a violent death, we should recognize that these conditions result from generations of injustice whose effects will take effort and time to overcome. To ignore racial differences in the name of colorblindness is to guarantee their perpetuation. The day when race no longer matters will not arrive until we take active measures —affirmative action—to provide opportunities for minorities to educate themselves. If the Court decides to revisit Bakke, it would do well to recall the late Justice Harry Blackmun’s admonition in that case: “In order to get beyond racism, we must first take account of race. There is no other way. And in order to treat some persons equally, we must treat them differently. We cannot—we dare not—let the Equal Protection Clause perpetuate racial supremacy.”

Author Kim Forde-Mazrui is professor of law and Barron F. Black Research Professor at the University of Virginia. He teaches and writes about race and constitutional law, and is the author of “The Constitutional Implications of Race-Neutral Affirmative Action,” Georgetown Law Journal (2000). He is a former employee of the University of Michigan, where he also received his undergraduate and law degrees.

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