Posted Feb. 28, 2003
Grutter Likely Will End Affirmative Action, Forde-Mazrui Predicts

Professor Kim Forde-Mazrui spoke at a Black History Month event Feb. 20.

The Supreme Court likely will strike down the University of Michigan's affirmative action policy, possibly ending affirmative action throughout the nation's colleges, law professor Kim Forde-Mazrui said at a Black Law Students Association Black History Month event Feb. 20.

In Grutter v. Bollinger, scheduled to be heard by the Court April 1, Barbara Grutter is challenging the University of Michigan Law School's admission policies, alleging that they have kept out more qualified white applicants like herself. In an "unusual move," the court is simultaneously taking a similar case in which the students denied admission were applying for Michigan's undergraduate school, even though the lower court of appeals had not yet ruled on the undergraduate case. Forde-Mazrui said the Court may have decided to rule on affirmative action now because there's an apparent clean split between the federal courts of appeals—the 5th Circuit, which serves Louisiana, Texas and Mississippi, has denied the constitutionality of raced-based admissions at the University of Texas, whereas the 6th Circuit, serving Ohio, Michigan, Kentucky and Tennessee, has approved the use of it at Michigan. The last time the Supreme Court ruled on affirmative action, in Bakke, the decision gave mixed signals to college administrators.

In Bakke, "the ideal of a colorblind Constitution was confronted by the reality that, without affirmative action in higher education, schools and the professions they serve would remain overwhelmingly white," Forde-Mazrui said. "The Court essentially said affirmative action is constitutional sometimes, but not by quotas."

The compromise ruling was the result of a fractured Court: some justices who approved of affirmative action in certain situations could not agree to endorse a quota system, and others were outright opposed to affirmative action itself.

Cases since Bakke have further muddled the issue of what legal standards to apply to racially preferential affirmative action, Forde-Mazrui said. In 1989 a solid majority of the Court decided in City of Richmond v. Croson Co. that state-sponsored racial preferences must satisfy "strict scrutiny"—they will be upheld only if they are "'necessary' to further a 'compelling' governmental interest." As a result of the ruling, racial preferences by law must be designed to counteract an identifiable past discrimination against an identifiable group.

At the time of Metro Broadcasting Inc. v. Federal Communications Commission, which upheld a federal policy that promoted racial diversity in media ownership in 1990, the conservative majority that now exists on the Court was in the minority, he said. O'Connor's decision could be key in Grutter, he added, since she is the swing voter for affirmative action cases. Although she seemed to approve of Powell's support of diversity in Bakke in her opinion on Wygant v. Jackson Board of Education (1986), she sided with the minority in Metro. O'Connor said that broadcast diversity was too "amorphous" and objected to the idea that racial diversity necessarily meant broadcast diversity.

Forde-Mazrui said Michigan denied it was trying to use its affirmative action policies to remedy past discrimination, since the strict scrutiny standard is realistically impossible to meet.

"The only plausible basis on which to justify Michigan's policy is the one it relied on—to achieve a diverse student body," he said. Michigan's problem is their attempt to use "racial diversity to achieve intellectual diversity," since the Court may view this assumption as stereotypical. Even if the Court accepts a correlation between race and perspective, they may decide diversity is "amorphous" and not quantifiable, as O'Connor did in the Metro case.

Now that conservatives are in the majority, the 5-4 decision by the 6th Circuit Court "is likely to be reversed by the same closely divided opinion of the Supreme Court."

If the Court strikes down Michigan's policy, 4,000 schools are likely to be affected, since many private schools receive federal funds. Schools receiving such funds are subject to Title VI of the Civil Rights Act of 1964, which holds schools receiving federal funds subject to the same anti-discrimination laws as public schools.

"The Court's decision in Grutter may well end affirmative action in all colleges," he said.

Some schools are already preparing for a negative decision and have implemented race-neutral policies, such as "class-based" affirmative action programs in which weight is given to the socioeconomic background of applicants. But despite their race-neutral criteria, Forde-Mazrui alleged, such policies may be just as vulnerable because of their motive to achieve racial diversity, regardless of the means used. He added that such programs are problematic anyway, because whites dominate the pool of economically disadvantaged applicants who are prepared for college.

Wrapping up his speech, Forde-Mazrui noted the irony that those opposed to affirmative action now hold up Martin Luther King Jr.'s "I Have a Dream" speech—specifically his hope that his children would "one day live in a nation where they will not be judged by the color of their skin but by the content of their character"—as their model for opposing the policy.

He responded that there are still "stark disparities" between blacks and whites. An average black child is more likely to be born into poverty, in a broken family, in a community marked by substance abuse, violent crime, and poor-quality schools, he said. Centuries of slavery and legal oppression have "created an underclass identifiable by race."

"The day when race no longer matters will not arrive until we take measures, or affirmative action, to provide sufficient opportunities for minorities to educate themselves," he said.

He reminded the audience that King also said "The negro is not seeking charity . . . He does not want to be given a job he cannot handle. Neither, however, does he want to be told that there is no place where he can be trained to handle it"

"If opponents of affirmative action seek guidance from Dr. King, as we all should, they should remember all of his dreams," he said.

In a question-and-answer session following his speech, Forde-Mazrui expounded on the Supreme Court's historically mixed feelings on affirmative action.

"The Court's aversion to using race to predict other traits has an empirical basis and a normative basis," he said. Empirically, race is predictive of diversity, but normatively we don't like to make generalizations about how people think based on their race, he explained.

Although he suspected Michigan's policy would be struck down, in response to questions he added that the Court "may well issue a narrow ruling." O'Connor could swing the other way and be more willing to support diversity in education.

"There's a kind of mass resistance" to eliminating affirmative action in colleges by administrators, he added. "If the Court's opinion leaves any room to get around it," they will.

Furthermore, the intensity of the debate reflects the importance of the issue to liberals.
"Higher education is seen as the gateway to the most powerful posts," he said.

In response to a question about the effects of the Grutter decision on other non-meritorious factors considered by admissions offices, he agreed that more people should be educated about admissions policies, but added that "race is different," since legacies, for example, have a specific rationale in which schools benefit from the philanthropy of legacy families.

"Race needs to be justified by something more than other kinds of factors," he said.

He noted, however, that race-neutral policies are not always effective. Texas' 10 percent plan may work better in their own state, he said, where many schools are still essentially segregated, but it won't work well in Florida, where a 20 percent plan in a more integrated community is expected to have a lesser effect at achieving diversity. The Texas plan, in some ways, may support integration, since whites may move to African-American neighborhoods to get in the top 10 percent.

"It may be a good idea to build [a plan] on racial segregation in a way that may build on integration," he said.

He added that overall he's not satisfied with the Texas plan compared to more traditional affirmative action. Better-qualified minorities in mostly white, high-achieving schools could get passed over for students in lower-achieving schools, he said.

"Racial preferences are a pretty blunt instrument," he said, but "it's still a fairly predictable proxy."

Although racial preferences are "imperfect," for colleges to fail to recognize the "cultural damage" wrought on African-Americans would be a mistake, he said.

"How do you remedy a harm caused by race without taking race into account?" he asked.

He said many of the arguments against affirmative action revolve around those who don't get in to the college of their choice, in their view because of a minority admission in their place. In reality many more applicants are rejected than accepted in many colleges and universities.

"There are always going to be so-called 'innocent victims'" whenever someone is trying to remedy a harm, he said. If Grutter wins, she will likely take the place of a student that wasn't even competing with her for a slot when she applied—making that person a victim.

In public policy, "we all sacrifice for the basis of helping others," he said. African-Americans are victims "for a lot less laudable reasons."

"What's needed now are long-term solutions that allow African-Americans to educate themselves," he concluded.
• Reported by M. Wood

Law Grounds News Index