(1) Affirmative action demands that we define race. Racial profiling demands that cops define race. Jim Crow used to demand that people define race. And so on. And so forth. Jim Crow was atrociously practical, racial profiling has been devastatingly practical, and affirmative action is practical -- if the Supreme Court doesn't allow it to be totally extinguished, that is.
***** The New York Times March 28, 2001, Wednesday, Late Edition - Final SECTION: Section A; Page 1; Column 5; National Desk HEADLINE: U.S. Court Bars Race as Factor In School Entry BYLINE: By JODI WILGOREN
A federal judge in Detroit ruled yesterday that the race-conscious admissions system of the University of Michigan's law school is unconstitutional, contradicting a December ruling in a parallel case that upheld the university's affirmative action policy for undergraduate admissions.
The earlier ruling, by another judge on the same court and now on appeal, was seen as a flicker of hope for a movement fallen out of vogue while the new ruling joins a string of defeats for affirmative action over the last six years. The undergraduate approach is far more explicit about using race, yet the law school's more subtle system was struck down, as the judges offered sharply divergent views of the importance of diversity in higher education.
"All racial distinctions are inherently suspect and presumptively invalid," Judge Bernard A. Friedman of the United States District Court in Detroit wrote in his decision yesterday. "Whatever solution the law school elects to pursue, it must be race-neutral."
The current push against affirmative action began in 1995, when the Regents of the University of California banned the use of race in admissions. A federal appeals court outlawed the practice in Texas, Mississippi and Louisiana the next year, and since then, voters in California and Washington have rejected affirmative action in both higher education and state contracting.
The debate over race-conscious policies is one of the most contentious in higher education today, and the closely watched Michigan cases are widely expected to send the issue back to the United States Supreme Court for the first time since 1978.
"We have here one of the most significant issues of our time," Lee C. Bollinger, the university president, said yesterday from an airplane bound for San Diego, where he was scheduled to give a speech on affirmative action. "The ideal of the integrated society, the importance of higher education to that ideal -- which is all consistent with the melting pot theory of American society -- is really now drawn into question."
The class that entered the law school, one of the nation's most competitive, last fall was about 85 percent white and Asian, 15 percent black and Hispanic.
Lawyers from the Center for Individual Rights, the Washington organization that brought the Michigan lawsuits on behalf of white applicants who had been rejected, celebrated the ruling as a "vindication" and a "clear repudiation" of affirmative action. They noted that Judge Friedman's decision came after a 15-day trial, whereas the previous ruling by Judge Patrick A. Duggan -- both are Reagan nominees -- was on summary judgment, meaning he heard no witness testimony.
"This is a victory for every young man and woman and all future generations of students," said Larry Purdy, a Minneapolis lawyer who helped argue the case for the plaintiff. "It moves us beyond the point where race matters."
On the university's Ann Arbor campus, a handful of students who had intervened as third parties in the case denounced Judge Friedman as a relic from the era of Jim Crow and said the ruling threatened to return the country to the 19th century era of separate but equal institutions.
"There is a mass militant student movement in support of affirmative action," said Agnes Aleobua, 19, a sophomore from Detroit. "We just took a huge step back, and we will not stand for it."
The crucial question in both Michigan cases is whether racial and ethnic diversity in higher education is, in legal parlance, a "compelling state interest" that demands a race-conscious remedy.
The dueling decisions by the federal judges in Detroit turn on contrary interpretations of the landmark 1978 Supreme Court decision in University of California Regents v. Bakke, which struck down the admissions policy at the Davis medical school, but said universities could consider race as one of several "plus factors" in selecting applicants.
The tricky part is that Bakke was a 5-to-4 decision in which Justice Lewis Powell broke a deadlock by agreeing with four of his colleagues on some issues and the other four on others. In declaring that diversity "clearly is a constitutionally permissible goal for an institution of higher education," Justice Powell stood alone.
Universities have based their admissions decisions on his rationale ever since, and Judge Duggan in December relied on it to embrace Michigan's use of affirmative action. But Judge Friedman said yesterday "the diversity rationale is not among the governing standards to be gleaned from Bakke."
Jeffrey S. Lehman, the dean of Michigan's law school, said the two opinions are "completely irreconcilable." (Judge Friedman's echoes the United States Court of Appeals for the Fifth Circuit's 1996 decision in Texas v. Hopwood, which the Supreme Court declined to review, that affirmative action is unconstitutional.) The law school plans to appeal the decision.
Beyond the question of the importance of diversity, Judge Friedman said the law school's admissions system would be illegal in any case because it was "indistinguishable from a straight quota system."
The "haphazard selection of certain races is a far cry from the 'close fit' between the means and the ends that the Constitution demands," he wrote, noting that the policy favored African-Americans and mainland-born Puerto Ricans but not Arabs or Eastern Europeans.
"If the law school may single out these racial groups for a special commitment today, there is nothing to prevent it from enlarging, reducing, or shifting its list of preferred groups tomorrow without any reasoned basis or logical stopping point," Judge Friedman wrote.
The split decisions in the Michigan cases are surprising because the undergraduate admissions system uses race more blatantly than the law school's and therefore seemed more vulnerable to attack. In admitting freshmen, the university gives black and Hispanic applicants a 20-point boost on a 150-point scale; the law school's approach is more subjective, with only vague guidelines about the importance of having a "critical mass" of minority students.
While white students have been more likely to gain admission to the law school than their minority counterparts -- 38 percent of white applicants were accepted last year compared with 35 percent of African-Americans -- a comparison of students with similar grades and test scores shows the advantage given to minorities.
For example, in 1995, all four African-American applicants with an undergraduate grade point average between 2.75 and 2.99 and scores on the Law School Admissions Test of 161 to 163 were accepted, while none of the 14 white applicants in those ranges were admitted. Among those with a G.P.A. between 3.25 and 3.49 and L.S.A.T. scores of 154 or 155, four of five African-Americans were admitted, compared to just one of 51 white applicants.
"The evidence indisputably demonstrates that the law school places a very heavy emphasis on race in deciding whether to accept or reject," Judge Friedman wrote.
As to the testimony showing that without affirmative action far fewer black and Hispanic applicants would likely gain admission to the law school, Judge Friedman suggested alternate routes to diversity, including paying less attention to grades, test scores, and whether an applicant's parents had graduated from the school.
Judge Friedman also dismissed the case presented by the intervening students, who testified at length about the discrimination they had experienced in inner-city high schools, white-dominated colleges, and in taking standardized tests.
"The effects of general, societal discrimination cannot constitutionally be remedied by race-conscious decision-making," he wrote.
A CLOSER LOOK Affirmative Action Policies in Education
These are the key rulings and referendums on admissions policies that take race into account:
JUNE 1978 -- United States Supreme Court hands down Bakke ruling saying race can be an element in universities' efforts to create diverse campuses.
JULY 1995 -- University of California ends use of race and sex in hiring and admissions.
MARCH 1996 -- In the Hopwood case, a federal appeals court overturns the admissions system at the University of Texas law school on grounds that its racial preferences are unconstitutional.
NOVEMBER 1996 -- California voters, in Proposition 209, ban most state-sponsored affirmative action.
MAY 1997 -- To get around the Hopwood ruling, Gov. George W. Bush of Texas signs into law a measure granting admission to the University of Texas to the top 10 percent of graduates in all state high schools.
NOVEMBER 1998 -- In a referendum, the State of Washington bars use of race and sex in, among other things, public university admissions.
NOVEMBER 1999 -- Gov. Jeb Bush of Florida issues an executive order banning racial preferences but granting admission to state colleges to the top 20 percent of high school graduates.
DECEMBER 2000 -- A federal judge in Detroit upholds racial preferences in undergraduate admissions at the University of Michigan, saying diversity on campus produces important educational benefits. *****
So, your objection (1) has been negated in practice.
Objections (2)-(5) will have to be worked out as the movement grows. In my opinion (naturally a minority one!), reparation should consist of socialism worldwide + affirmative action based upon quotas, _at least_. I'm certain that such an objective is "impractical" at this point, but nonetheless it's the only reparation that will not add insult to an injury, will not cast Africans & African-Americans into nothing but victims (as opposed to history-makers), will not pit blacks against others, etc., I believe.
Yoshie