Affirmative Action Upheld

Affirmative action has won a major legal battle, but not the political war. Although last June the U.S. Supreme Court upheld race-conscious admission practices of the University of Michigan Law School, conservative-sponsored ballot initiatives during the upcoming 2004 elections will urge voters in Michigan and other states to outlaw racial preferences.

The victory was limited in scope and gained by a narrow margin. In Grutter v. Bollinger, the Supreme Court Justices split 5-4 to allow racial information to enter when evaluating individual University of Michigan Law School applicants. In Gratz v. Bollinger, however, they struck down University of Michigan’s method of automatically giving extra points to minority applicants competing for undergraduate admission under a scoring system.

The rulings do not affect whether blacks and latinos get a chance to attend college, but these underrepresented minorities are preferentially admitted to the nation’s most selective institutions. Associate Justice Clarence Thomas was among the four dissenters opposing affirmative action.

Both symbolism and substance are in the decision, believes William B. Harvey, vice president and director of the Office of Minorities in Higher Education at the American Council on Education (ACE). “The substance piece is whether or not we are going to continue to have representation of students of color in the most elite institutions in the country,” he says. “Had the decision come the wrong way, it would have dramatically limited the number of students of color who would be able to get access.”

“Opponents of affirmative action will try to use the fear of future lawsuits to intimidate college administrators into backing off from admissions programs that increase diversity,” says Spencer Overton, a professor at George Washington University Law School who teaches civil rights legislation. “They are going to suggest that the opinion is cloudy and the law is unsure and that the best way to avoid litigation is to simply abandon effective race-sensitive affirmative action programs,” he says. Overton believes that in order to continue diversity, a campus-by-campus struggle must be led by alumni, students, and professors.

Harvey feels the Michigan ruling was a serious setback for conservatives and that until the membership of the Supreme Court changes significantly, their next legal challenges will test affirmative action on a different ground than education — perhaps in employment.

Ward Connerly (the conservative African American who spearheaded Proposition 209, the 1996 ballot initiative that California voters passed to stop affirmative action) is currently promoting the Racial Privacy Initiative (RPI) in California to eliminate the collection of racial information on state government forms. If successful, the initiative would make it difficult to gather certain data that might be useful in documenting racial disparities. Connerly says that discrimination will persist if blacks don’t earn respect by being highly competitive.

Several organizations are exercising vigilance on affirmative action issues. The National Urban League held an affirmative action workshop in July at its national conference in Pittsburgh. “I don’t think that those who oppose affirmative action are going to stop trying to discredit it,” says Marc Morial, president of the National Urban League. “That