Dividing the Nation: Affirmative Action

By Mayra Rodríguez-Valladares — Those who oppose the way in which the University of Michigan admits students say that racial preferences or quotas are unfair, unconstitutional and “perpetuate our divisions,” as President Bush recently put it. That is why they have taken their case all the way to the U.S. Supreme Court.

Those who support the University of Michigan admissions policies favor the use of Affirmative Action programs to promote diversity. They are believers in the benefits of a multi-ethnic, multi-color student body for the university, its
students, and society as a whole.

The one thing both sides agree on is the importance raised by the two cases, Gratz and Grutter vs. the University of Michigan’s undergraduate and law schools, respectively. The Supreme Court will decide whether prospective students may receive preferential treatment based on ethnicity or race—in other words: whether the university can maintain its Affirmative Action policy.

But it is much more. This is the first time in 25 years that the Court will address the constitutionality of Affirmative Action in higher education admissions. Its decision will determine the legality of Affirmative Action at universities across the country and influence efforts to bring greater diversity to those campuses.

The case targets the university’s College of Literature, Science and the Arts admission criteria, which are based on a 150-point system that awards students points for certain accomplishments and/or characteristics. In it, underrepresented minorities receive 20 extra points toward their total admissions evaluation, whereas a perfect SAT score only adds 12 points, as critics are quick to point out.

But Thomas Sáenz, vice president of litigation at the Mexican American Legal Defense and Educational Fund (MALDEF), defends the system, arguing that Affirmative Action is essential, because “there are still tremendous inequalities in our nation’s high schools and middle schools. Affirmative Action permits colleges to recognize that Hispanics and other minorities often have great potential to succeed—but unequal opportunity has limited their traditional credentials.”

Most universities, he says, use standardized test scores and preferences for children of alumni—criteria that “have a demonstrated racial bias against minorities, and [which] have little or no connection to likelihood of success in college.” Sáenz believes that so long as such biased criteria are used, Affirmative Action is a necessary adjustment mechanism.

The University of Michigan and those who defend its admission policies argue its selection process does not use quotas, as opponents charge. Further, Foster Maer, acting legal director of the Puerto Rican Legal and Education Defense Fund (PRLEDF) maintains that “the Bush administration is misstating the issue before the Court. The Michigan case is not about quotas, nor does the application process exclude anyone. By casting it in these terms, the Bush administration is being disingenuous and divisive. Michigan’s system is not impossible to administer. Hundreds, if not thousands, of colleges and universities in the U.S. use formulas like the Michigan one, with many variations. There is no magic formula.”

Theirs is a view backed by numerous civil rights organizations that have filed amicus briefs on behalf of the university. They include the New Mexico Hispanic Bar Association, the Black Lawyers Association and the Indian Bar Association.

On the other side, Linda Chávez, president of The Center for Equal Opportunity, a non-profit research and educational organization in Virginia, says that she hopes the Supreme Court uses the Michigan Grutter and Gratz cases to ban the use of racial and ethnic preferences in university admissions. She believes such a ban “is essential for the continued progress of racial relations in the United States. If preferences are ended, all races will win. If they aren’t, we will all lose ... African Americans and Hispanics are now being told that they cannot be expected to succeed unless they are held to a lower standard than whites and Asians. That is insulting, and undermines the mutual respect that is essential in an increasingly multiethnic, multiracial America.”

U.S. Secretary of Education Rod Paige agrees: “Admissions quotas and double standards are not the answer,” he said recently at a National Center for Educational Accountability conference. He believes that “fixing the problem at the front end, where it can do the most good, is the answer.” The goal of President Bush’s No Child Left Behind law, he says, is to transform American education “from a system that does a good job educating some children to a system that does a good job educating all children, from all walks of life.”

On one point, both sides of the Affirmative Action debate agree: Diversity at the college level is a good thing. “Americans overwhelmingly agree that diversity in our schools, neighborhoods, workplaces and community organizations is enormously positive,” says Gerald Reynolds, assistant secretary for civil rights at the Department of Education.

Still, the Bush administration argues that alternatives to existing affirmative action programs must be developed. “Policies granting preferences on the basis of race and ethnicity raise constitutional questions and are increasingly being overturned in the courts,” Reynolds says. Further, “voters in various jurisdictions have passed state and local initiatives restricting the use of racial preferences. These legal and policy trends mean that we must work together to look for new solutions.”

Maer disagrees. “The Supreme Court has already held that race can be a legitimate consideration in admissions policies in its decision on Bakke v. University of California in the 1970s.”

According to the U.S. Department of Education’s report on this issue, Race-Neutral Alternatives in Postseconday Education: Innovative Approaches to Diversity, some higher education institutions are finding ways to provide equal access without resorting to racial preferences. “Many colleges and universities are investing in nearby elementary and secondary schools, [recognizing] that helping to better educate young people who attend traditionally low-performing schools will broaden the pool of students who can qualify for admission to college.”

Professor Margaret Montoya, of the University of New Mexico Law School, has a different perspective. “There are no race-neutral alternatives. Only a limited use of race-conscious criteria will result in racially diverse student bodies in colleges and universities,” she maintains.

A decision from the Supreme Court is expected this fall. Just what the court will say is difficult to predict. “Everyone generally believes that four justices will vote to support the continued consideration of race in admissions, while four other justices are generally believed to take the opposite view,” says Sáenz.

“The swing justice is Justice Sandra Day O’Connor. Her vote will likely determine the outcome.”