Action Needed: An Affirmative Change in Affirmative Action Policies

Most significant legal issues such as gun control, the death penalty, freedom of speech, abortion, and separation of church and state have definitive opponents and proponents. Few people are unable to articulate their views on these subjects. However, ask someone, even a lawyer, their opinion on affirmative action and most often the response is a desultory, meandering of confusion, buts, howevers, and maybes.11 Even today, members of Allan Bakke's medical school class, some admitted to Davis under the “special admissions program” have mixed beliefs and emotions about the issue. See generally, Debra Rosenberg, Not Just Black & White, Newsweek, June 30, 2003:34-37. In our increasingly competitive and diverse country no one can be criticized for lacking a conclusive view. After all, the supposedly legally omnipotent Justices22 The 1978 United States Supreme Court was comprised of Chief Justice Burger and Associate Justices Powell, Brennan, White, Marshall, Blackmun, Stevens, Stewart, and Rehnquist. Of these, only Stevens and Rehnquist remain on the Court today, with the latter as Chief Justice. of the United States Supreme Court in their 1978 decision, Regents of The University of California v. Bakke, 438 U.S. 265, were similarly fractured with no majority proffering the opinion. The 9 Justices wrote 6 separate opinions with no more than 4 agreeing to any one reasoning. “All [Allan] Bakke wanted to do was be a doctor…. He didn't want to be a social cause,” commented medical school classmate, Dr Faith Fitzgerald, to Newsweek recently.33 Debra Rosenberg, Not Just Black & White, Newsweek, June 30, 2003: 34–37. But he represented a controversial social cause, catalyzing reversed discrimination under the veil of affirmative action, all the way to the United States Supreme Court. Bakke, twice rejected by the University of California, Davis' Medical School (Davis), challenged Davis' “special admissions program” aka “special-quota program” designed to help minorities get into Davis.44 The 1973 Davis application form asked candidates if they would like to be considered as “economically and/or educationally disadvantaged” applicants; in 1974 it asked if they would like to be considered as a member of a “minority group.” According to the United States Supreme Court's opinion, Davis viewed “minority group” as composed of Blacks, Chicanos, Asians, and American Indians. See, Bakke, 438 US at 265. Ultimately, even before mandated to do so by law, Davis ceased to give race any extra weight in the admissions process. Under this special program, Davis admitted 16 students out of a class of 100. The ultimate effect of the Bakke decision, without detailing the matrix of the Justices' opinions, was to declare racial quotas unconstitutional while allowing race to be used as a factor in admissions. For more than a generation this decision guided undergraduate and graduate admissions programs. Despite the United States Supreme Court's status quo in the affirmative action arena over the past quarter century, the debate never subsided. For example, in 1996 California passed Proposition 209 as an amendment to its State Constitution, with 54% of those voting in favor of adding the proposition and 46% against.55 American Civil Rights Institute's Web page. http:www.acri.org209howcavoted.html California's Proposition 209, “Prohibits the state, local governments, districts, public universities, colleges, and schools, and other government instrumentalities from discriminating against or giving preferential treatment to any individual or group in public employment, public education, or public contracting on the basis of race, sex, color, ethnicity, or national origin.”66 Prohibition Against Discrimination or Preferential Treatment by State and Other Public Entities. Initiative: Constitutional Amendment. Official Title and Summary prepared by the [California] Attorney General. http:vote96.ss.ca.govVote96htmlBP209.html After the vote and predicted ensuing court case, Proposition 209 was declared constitutional by the Ninth Circuit Court of Appeals in The Coalition for Economic Equity v. Wilson, 110 F. 3rd 1431 (9th Cir. 1997). As a result of this decision, no California state, district, or local government or instrumentality thereof, nor California public university, college, or school can use race as a factor in its decision making process. Also in 1996, the Appellate Court for the Western District of Texas, in Hopwood v. Texas, issued a de facto injunction to prohibit the use of race in the University of Texas' Law School admissions process only, and sent the case back to a lower court for additional evaluation. In a case with facts not unlike Bakke, 2 white students challenged the law school's admission policy as racially discriminatory. The 1996 case was not the last chapter in the Hopwood case, on December 21, 2000, the Fifth Circuit Court of Appeals, which includes Texas, reversed the Western District's injunction, finding it had overstepped its judicial authority thus, and making it permissible for the Law School to use race as a factor in its admission procedure once again. Subsequently, the Fifth Circuit sent the case back, again, to a lower court for scrutiny. So did the much anticipated, recent United States Supreme Court affirmative action decisions of Grutter v. Bollinger (June 23, 2003) and Gratz v. Bollinger (June 23, 2003)77 In keeping with the fractured nature of the topic, the Supreme Court issued 1 majority opinion, 3 separate concurring opinions, and 2 dissenting opinions in Grutter and 1 majority opinion, 3 separate concurring opinions, and 3 dissenting opinions in Gratz. unravel the conundrum? You decide. In Grutter, the Court ruled in favor of The University of Michigan Law School's admission policy holding that it was sufficiently “narrowly tailored,… served a compelling state interest (diversity in higher education)”88 This is the legal phrase of art used to articulate the most stringent scrutiny applied to review a Constitutional question by the United States Supreme Court. and adhered to the precedent set in Bakke such that race was a factor, but not the factor in its admission policy (there was no quota issue of concern). The Court also commented that 25 years from now “the use of racial preferences will no longer be necessary to further the interest approved today.” In addition, The University of Michigan Law School, on its own accord, has promised to find a race-neutral admissions policy “as soon as practicable.”99 Highlights of the Supreme Court's 2002–2003 Term: Affirmative Action, Cornell University Law School's Legal Information Institute. http:supct.law.cornell.edusupct03highlts.html In Gratz, however, the Court held that the University of Michigan's use of race in its undergraduate admissions policy clearly violated the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution because the University's “point system” effectively made “the factor of race… decisive” for virtually every “minimally qualified underrepresented minority” applicant. Race was the factor, not just a factor, and the Court deemed the policy unconstitutional. I'm sure these Supreme Court decisions did not illuminate the answer for anyone conflicted about affirmative action. Whether my suggestion will, or whether it will simply add fuel to the fire I do not know, but I believe it is worth considering. In 1973, before Bakke, the Davis medical school application form asked candidates if they would like to be considered “economically and/or educationally disadvantaged.” I believe it should never have changed. By allowing an applicant to proffer their disadvantaged economic or educational background, an admissions policy would umbrella many if not all of the discrimination that affirmative action has sought to erase. For example, in order to have a fair chance at competing with affluent public school or even private school education, the academic achievements of inner city children should be viewed for the reality of what it is, a veritable battle ground of violence, drugs, and gangs, without enough classroom space, books, and well-trained teachers. And there are not only minorities in these inner city schools, but white children as well who are suffering from society's failure to get them off on equal footing. Likewise, should the child of a Condolezza Rice, Colin Powell, Jesse Jackson, J. C. Watts, Sean “P. Diddy” Combs, Russell Simmons, or even Kobe Bryant be given special minority dispensation in college admissions, when at least one of his or her parents is extremely well educated either academically or in business, vastly successful in his or her chosen field, well connected, and could afford to send a child to an elite private school or afford tutors? It seems to me, and I am sure to others, that in the twenty-first century, it is economic and educational discrimination that we should seek to correct to elevate not only minorities, but all of us.

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