The Hindu : Affirmative action

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Thursday, May 01, 2003

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Affirmative action — I

By Nathan Glazer

Americans on the whole are opposed to the idea of bald racial preference... The response of university administrators has been to find alternative bases of student selection which will keep up the number of black students.

ON APRIL 1, 2003, the Supreme Court of the United States heard oral arguments in a case which has aroused enormous interest, and which many believe will determine the fate of affirmative action (the American version of India's reservation policy) in American higher education. The Court has refused to accept any case from a lower court on the highly controversial policy of giving preference to black and Hispanic students in college and university admissions for the past 25 years. These policies were adopted in the late 1960s and early 1970s, in the wake of the Civil Rights Act of 1964 and the urban riots of the late 1960s, to deal with the problem of the very small numbers of black students who gained admission to elite American colleges, universities, and professional schools. Blacks were then 12 per cent of the population, but generally numbered only 1 or 2 per cent of the students in such schools.

Discrimination against black applicants was not the reason for these low numbers, because such discrimination had not been present for some time in most of these institutions, and in any case was effectively banned by the Civil Rights Act. The problem was the low academic achievement of black students. If a college, university, or professional school chose for admission only those applicants who scored high grades in high school and on the national tests that these institutions require their applicants to take, very few blacks would gain entry. If the institutions wanted more black students, they had to accept black applicants with scores far below those of the average white applicants. This is what just about every selective institution in the country — whether major private university, elite liberal arts college, selective state university campus, or professional school — has been doing for the past 30 years to increase the number of their of black students from 1 or 2 per cent to 5, 6, or 7 per cent of their enrolment.

These policies for the most part were adopted voluntarily by each institution. Neither the Federal nor the State Governments require this preference for blacks. Sometimes these policies were adopted in response to militant action by black students, who sometimes occupied the president's office and disrupted academic procedures, and who were mollified by the promise to increase the number of black students. In such cases it would be hard to say the policies were accepted "voluntarily". But in time the administrators of institutions of higher education, the presidents and deans, became strong advocates and defenders of these policies. White students who were rejected by selective public institutions and believed their chances for admission were reduced by preference for blacks sued the institutions which had rejected them in Federal court on the basis of the 14th Amendment to the Constitution. This amendment, adopted after the Civil War to give equal rights to the newly freed blacks, asserted that no person could be denied the "equal protection of the laws". A case could also rest on the Civil Rights Act, which specifically bans racial quotas for employment and, it may be assumed, for admission to institutions of higher education too. The Supreme Court ruled in 1978 on such a complaint by a white student who had applied to the medical school of the University of California at Davis. The medical school had adopted a quota for minority students, that is, for blacks and Hispanics and Asians. (In those distant days Asians were still considered a minority group that needed assistance — today they are present in selective institutions in great numbers, without benefit of any preference.) A majority of the court, five members against four, ruled that this quota was unconstitutional, and that the aggrieved applicant should be admitted to the medical school. But one Justice of this majority asserted that race could be a factor in making an admission decision if it was done to increase the "diversity" of the student body, for purposes of improved education. In effect, "diversity" became the only legitimate legal ground, in the eyes of college and university lawyers, for preference for blacks and Hispanics, and preference continued, while the institutions denied they had fixed quota for minority students. In this manner, selective institutions managed to find enough black students to get a student body generally 5, 6, or 7 per cent black, far below the percentage of blacks in the population, but above what their academic record alone would permit. Preference also became common for "Hispanic" students — generally Mexican, but the term covers all those from Spanish-speaking Latin America-but since their academic achievement tends to be slightly higher than that of blacks, the degree of preference does not need not to be as great.

These policies have been under steady attack politically. Americans on the whole are opposed to the idea of bald racial preference. And so referenda in California and the State of Washington have banned racial preference in state institutions of higher education. The response of university administrators has been to find alternative bases of student selection which will keep up the number of black students. In Texas, a Federal court declared racial preference by state institutions illegal. The State legislature then ingeniously passed a law guaranteeing admission to the top 10 per cent of high school students. Since a large proportion of black and Hispanic high school students are in schools in which their group is numerically dominant, this is a way of getting more black and Hispanic students without a direct and overt preference. California and Florida have also adopted such "percentage" plans. Since the Supreme Court remained silent, we seemed to be drifting into a situation in which different States would follow different rules. But two cases from the University of Michigan made it impossible for the Supreme Court to evade the issue. In one, a white student sued for admission to the undergraduate college, and in another a white student sued for admission to the University of Michigan law school, both charging they had been discriminated against because of minority preference. Federal courts came to directly opposing conclusions on these two cases, one supporting and one banning racial preference.

So 25 years after its ruling in the Bakke case, the Supreme Court can no longer evade the issue, and will rule on it in June. The composition of the Supreme Court is of course quite different now but it still divides 5 to 4 on many issues, as it did then, with four justices on the "right", four on the "left", and one in the middle, who can go either way depending on the case. The justice in the middle in 1978 was Lewis Powell, who accepted the diversity argument for taking race into consideration. The justice in the middle in 2003 is Sandra Day O'Connor, the first woman member of the Supreme Court. She is normally a conservative justice but she may be, because of her own experience as a superior pioneer female law student who met fierce sex discrimination, open to the arguments of those supporting racial preference. In effect, the resolution of one of the most controversial and disputed issues in American public life may come down to how just one person on the nine-member Supreme Court rules.

(The writer is the Professor of Education and Sociology Emeritus at Harvard University.)

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Affirmative action — I