|Professor Kim Forde-Mazrui expressed concern
about the future of affirmative action at a recent Student Scholarly
Posted August 7, 2003
Court Skirts Remedy Issue in Grutter
Law Professor Kim Forde-Mazrui thought he knew how
the Supreme Court would probably decide the already infamous Grutter
v. Bollinger case, in which University of Michigan applicants challenged
the undergraduate and law school admissions policies. "Now I have
to regroup because I was frankly stunned" when the Court upheld
the law school's policy, and with it affirmative action in higher ed.
"So it's all new and I don't know where this is going," he
acknowledged to students and professors who met to talk about the decision
at a July 24 lunch sponsored by the Center for the Study of Race and
Law. Forde-Mazrui, director of the new Center, questioned whether the
Supreme Court made the right decision and based it on the wrong reasons.
"There's something unsatisfying to me [for the
Court] to justify on something less compelling and something that is
not the real reason," he said, adding that affirmative action was
plainly instituted to remedy an injustice rather than simply to add
diversity to education. "There are costs to relying on the wrong
Forde-Mazrui charged that diversity itself doesn't
rectify injustices, and may in fact "result in helping the wrong
people." If you want to undo the effects of legally sanctioned
discrimination, he said, the most affected and most disadvantaged should
benefit from a policy of remedyan aim diversity itself won't accomplish.
Some minorities who may benefit from a policy of affirmative action,
such as recent immigrants, may not have experienced significant discrimination,
especially the effects of past discrimination.
"Over time, if we reduce the racial gap [in colleges],
there may be a deception going on," he added. If more middle-class
blacks are in college, it may appear that we are racially equal, but
more poor, urban blacks who have been most affected by past discrimination
may not benefit. "I fear that diversity may fail in results to
reach those people."
For Forde-Mazrui, Grutter hit close to home.
He graduated from Michigan's undergraduate and law school programs,
later clerking on the Sixth Circuit Court of Appeals, which had upheld
Michigan's policy before the case reached the Supreme Court.
His own experiences with race caused him to focus
on it as an area of scholarly interest. Raised in a middle-class, mostly
white Ann Arbor neighborhood, Forde-Mazrui has a mixed racial heritage
(half-Kenyan and half-British), and didn't gain his American citizenship
until after law school. He realized he had stereotyped black students
when he was working as a dishwasher in high school and took out the
trash one day. Forde-Mazrui, who has a sight impairment, saw a group
of what he thought was black teens hanging out by the dumpster, and
was disappointed by his own relief when he realized they were white.
When he got to college, a hard-working black engineering student across
the hall made a strong impact on him. "It was such a stark difference
than the image I was used to growing up in public schools," he
Forde-Mazrui acknowledged having mixed feelings about
affirmative action. He recalled a female friend who claimed he got into
Michigan (and not her) because of his race, even though he had a higher
GPA. When told the news of his acceptance, his wife's co-worker said
"of course he [was accepted]he's both black and blind."
Michigan Law Review has an affirmative action policy, and on
his application he decided not to mark his ethnic background, but was
accepted. He later found himself allied with more conservative Review
members in fighting the journal's affirmative action policy because
of its stigmatizing effect on minority members who interviewed with
employers aware of the policy. More recently, he was anxious for his
son, who is white and adopted, to attend Michigan so he can experience
a more even racial playing field, but because of his son's race, it
may have been harder for him to get admitted. "I felt torn about
it," Forde-Mazrui acknowledged. "I support affirmative action,
but with some hesitation."
"Those who support affirmative action were relieved
by this opinion," he said, counting himself among that number.
The Court has grown more conservative since the 1978 Bakke case,
so the decision surprised many. Justice Sandra Day O'Connor, the swing
vote in Grutter, had nixed equating racially diverse ownership
with diverse broadcasting in Metro Broadcasting (1990), seemingly
spelling doom for future affirmative action cases.
Forde-Mazrui said the Court's decision doesn't clarify
whether achieving racial diversity is a compelling governmental interest,
or even what diversity means. Is racial diversity an end, or part of
the goal? Either way, Forde-Mazrui said, racial diversity has educational
benefits, such as breaking down stereotypes and creating understanding
among college students; societal benefits, such as ensuring that businesses
and the military will have a diverse applicant pool; and political legitimacyappearing
to have an open society in regards to race. The Court stressed that
the path to political leadership needs to be available to all races.
The majority decision used phrases like "visibly open" and
"confidence of the people"whether or not affirmative
action actually has an effect on education, it's critical to appear
open. Simply being inclusive is critical to legitimacy, the decision
Prior to his talk, Forde-Mazrui and other faculty
members talked with students about the decision.
He questioned whether the implications of Grutter
should be limited to higher ed. Should employers use affirmative action?
Or juries? If you suggest that racial diversity adds needed perspective,
what does that mean for voting and political leadership? He noted that
studies on juries have shown that when people of different races are
in a room, they may speak more on the facts rather than rely on stereotypes.
Likewise, race may or may not impact the classroom, depending on the
subject of the class and whether it is discussion-oriented.
"There's definitely something missing from the
class if it's all females," added Law Professor Anne Coughlin,
who has taught courses on gender and the law and criminal law. Without
racial diversity, "there's definitely a perspective missing in
the room when you're talking about police" and other issues that
touch on race.
The Court's split decision on the undergraduate and
law school cases may make life more difficult for colleges that attempt
to quantify ethnic backgrounds or other factors in order to balance
out individual application readers' opinions. But Forde-Mazrui suggested
that the two admissions policies basically accomplished the same thing,
and the only difference was a question of degree. The Court drew a line
between the two that in some ways seems "purely arbitrary,"
he said. Michigan's undergraduate policy failed on the tailoring prongawarding
20 points to some minorities proved "too automatic" for the
Court, Forde-Mazrui said, "and secondly, that it's too much."
One student asked whether socioeconomics would be
a valid proxy for race. "There's something about race that affects
somebody's experiences in a way that can't be captured" by looking
at socioeconomics alone, Forde-Mazrui responded. Furthermore, basing
affirmative action on socioeconomics provides an ineffective remedy
for racial discrimination, and race-neutral policies won't help the
disproportionate number of poor minorities.
Even as affirmative action supporters celebrate the
decision, opponents are mounting a referendum campaign in Michigan.
Forde-Mazrui said challengers allege that primary and secondary education
should be improved rather than institute affirmative actionbut
"what's stopping them from doing it now?" In California and
Florida, states that have already eliminated race-based college admissions
policies, there has not been substantial new investment in lower ed,
"At the very least we should remind ourselves
of what is causing blacks and other minorities to fail to meet educational
standards," he said. Many live in areas where nine out of 10 children
are born out of wedlock, and in high-crime zones. Education at elite
schools hardly touches their lives.
Bakkeand now Grutterhave
"recognized and maybe even reinforced the way we think of the legitimacy
of society and the role of race in it," he said. "We're still
struggling to do it in a way that doesn't seem excessive."
Reported by M. Wood