Headlines, Human Rights, North America

SOCIETY: U.S. Top Court Upholds ‘Affirmative Action’

Jim Lobe

WASHINGTON, Jun 23 2003 (IPS) - In two long-awaited decisions, a deeply split U.S. Supreme Court on Monday ruled that universities may take race into account in deciding student admissions in order to ensure diversity of their student bodies.

Civil rights activists hailed the Court’s action, whose impact will be felt far beyond universities admissions practices. The verdict is likely to determine how courts rule on similar ”affirmative action” programmes in business and government hiring and contracting for some time to come.

”This is a historic day for the achievement of civil rights in America,” said Wade Henderson, director of Leadership Conference on Civil Rights (LCCR). ”The Court rejected arguments that would have turned the clock back on 50 years of civil rights progress.”

The two decisions were handed down on the eve of the 50th anniversary of the breakthrough civil-rights case, Brown v. Board of Education, in which the Supreme Court ruled that racial segregation in public schools was unconstitutional. The decision led to the integration of public schools throughout the country over the following 25 years and triggered an influx of unprecedented numbers of African-American and Latino students into colleges and universities, often under affirmative-action programmes.

But in the last 20 years, affirmative action has come under strong attack by right-wing forces which, during the administrations of former presidents Ronald Reagan and George Bush Sr, were given judgeships throughout the federal judiciary, the country’s strongest defender of minority rights over the past half century.

Many of these judges, including several Supreme Court judges appointed by Reagan and Bush, have at various times voiced scepticism, if not outright opposition, to affirmative action which, according to some, is a kind of ”reverse discrimination” that violates the rights of members of majority groups.

Foes of affirmative action have also organised politically at the local and state levels. In 1996, for example, California voters approved Proposition 209, which banned outright state-sponsored affirmative action in employment, contracting and university admissions. The result was a sharp fall in the enrolment of black and Latino students in the University of California system.

The twin decisions announced Monday concerned the admissions procedures of the baccalaureate and law school programmes at the University of Michigan, one of the country’s most prestigious public universities.

In the first case, Gratz v. Bollinger, the Court ruled 6-3 that the university’s policy, which automatically allocated 20 points to every minority applicant out of a possible 150 points required to guarantee admission, violated the ”equal protection” clause of the U.S. Constitution.

But in the second case, Grutter v. Bollinger, five of the Court’s justices ruled that the law school was justified in ensuring that a ”critical mass” of minority students was admitted to the school, even if that meant that qualified white students with higher scores or grades were excluded.

Taken together, the two cases appeared to reaffirm the judgement of the last major affirmative-action case, 1978’s Bakke v. Board of Regents.

In that case, which was decided by a far more centrist group of judges than the nine currently on the bench, the Court banned the use of ”quotas” to ensure a certain representation of minorities in universities, but ruled that race could be one factor in deciding admissions so long it was ”narrowly tailored” to specific cases.

Writing for the majority in the Grutter case, Justice Sandra Day O’Connor, who cast the deciding vote, argued that the Constitution ”does not prohibit the law school’s narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body”.

Conservatives had hoped that a majority in the present Court would give diversity less weight.

Ensuring diversity was also a major consideration in the Bakke case 25 years ago. Then, Justice Lewis Powell argued that diversity was a ”special concern of the First Amendment”, which guarantees freedom of speech and other fundamental rights. Powell stressed that ”the nation’s future depends upon leaders trained through wide exposure to the ideas and mores of students as diverse as this nation”.

Christopher Moody, the president of the University of Michigan Black Law Students’ Alliance, seized on the Court’s reliance on Powell’s assertions of a generation ago.

”The Court’s ruling today is one of the biggest victories for people of colour in education since Brown v. Board of Education,” he said in a statement. ”The law schools’ affirmative action policy is designed to open doors and minds and ensure that qualified students of different races and backgrounds can have a robust exchange of ideas in the classroom.”

”The decision handed down today is a green light for America to continue its commitment to diversity in all walks of life,” he added.

Women’s organisations also praised the decision. ”It will open doors not only for the millions of women of colour enrolled in the nation’s educational institutions, but also for women of all races and ethnicities,” according to Marcia Greenberger, co-president of the National Women’s Law Center.

”Faced with persistent under-representation of women in many areas of study, including math, science, technology and engineering, the nation’s universities have adopted a variety of programmes aimed at admitting and supporting qualified women in these fields. The court’s decision confirms the need for and validity of these programmes.”

Latino groups said the decision should also aid their quest for greater admissions in universities, particularly in those states, such as California and Texas, which have tried to dismantle affirmative action in recent years. ”With the largest Latino populations in the country, these states must re-examine and reform their policies and practices in light of the new Supreme Court guidance,” said Vibiana Andrade, vice president of the Mexican American Legal Defense and Educational Fund (MALDEF).

President George W. Bush praised the decision as a ”careful balance between the goal of campus diversity and the fundamental principle of equal treatment under the law”. His administration, however, had filed briefs in favour of the plaintiffs who brought the case against the University of Michigan.

In the 2000 election campaign, Bush said he opposed ”affirmative action” but supported ”affirmative access”, a phrase that he never defined in concrete terms. He has called on universities to use ”race-neutral” criteria to achieve diversity.

Bush’s position, as well as his appointments to the federal judiciary, makes many activists nervous. ”The narrow margin in the Grutter case underscores the importance of protecting the Supreme Court – and the entire federal judiciary – from Bush’s attempt to stack the courts for decades with life-long appointments of religious and political extremists,” said Kim Gandy, president of the National Organization for Women.

”The 5 to 4 split in Grutter is a brutal reminder of the Court’s delicate balance and what is at stake with the next resignation from the Court.”

It has been rumoured for some time that O’Connor plans to retire soon.