cqr affirmative action - sage publications inc · slowed by a major obstacle: affirmative action...

Affirmative ActionIs it time to end racial preferences?

Since the 1970s, affirmative action has played a key role

in helping minorities get ahead. But many Americans

say school and job candidates should be chosen on

merit, not race. This November, ballot initiatives in

Colorado and Nebraska would eliminate race as a selection criterion

for job or school candidates but would allow preferences for those

trying to struggle out of poverty, regardless of their race. It’s an

approach endorsed by foes of racial affirmative action. Big states,

meanwhile, including California and Texas, are still struggling to

reconcile restrictions on the use of race in college admissions de-

signed to promote diversity. Progress toward that goal has been

slowed by a major obstacle: Affirmative action hasn’t lessened the

stunning racial disparities in academic performance plaguing ele-

mentary and high school education. Still, the once open hostility

to affirmative action of decades ago has faded. Even some race-

preference critics don’t want to eliminate it entirely but seek ways

to keep diversity without eroding admission and hiring standards.

I

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S

I

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THE ISSUES ......................843

BACKGROUND ..................850

CHRONOLOGY ..................851

CURRENT SITUATION ..........855

AT ISSUE ..........................857

OUTLOOK ........................859

BIBLIOGRAPHY ..................862

THE NEXT STEP ................863

THISREPORT

University of Nebraska student Jakari Griffith, whoopposes an anti-affirmative action initiative on the

ballot in Nebraska in November, speaks on campus lastFeb. 26. Critics of the proposal say it targets programs

benefiting blacks, women and American Indians.

CQResearcherPublished by CQ Press, a division of SAGE Publications

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CQ Researcher • Oct. 17, 2008 • www.cqresearcher.comVolume 18, Number 36 • Pages 841-864

RECIPIENT OF SOCIETY OF PROFESSIONAL JOURNALISTS AWARD FOR

EXCELLENCE ◆ AMERICAN BAR ASSOCIATION SILVER GAVEL AWARD

842 CQ Researcher

THE ISSUES

843 • Has affirmative actionoutlived its usefulness?• Does race-based affirma-tive action still face power-ful public opposition?• Has affirmative action di-verted attention from thepoor quality of education inlow-income communities?

BACKGROUND

850 Righting WrongsThe 1964 Civil Rights Act permitted affirmativeaction to overcome dis-crimination.

852 Reversing CourseThe Reagan administrationweakened enforcement ofaffirmative action.

854 Mending ItIn 1995 the Supreme Courtlimited the use of racialand gender preferences.

CURRENT SITUATION

855 ‘Formal Equality’A proposed constitutionalamendment in Coloradowould bar discrimination.

858 Over Their Heads?The Civil Rights Commissionis asking if some studentsadmitted to top schools canhandle the work.

OUTLOOK

859 End of the Line?Both supporters and criticsof affirmative action see itsusefulness waning.

SIDEBARS AND GRAPHICS

844 Americans Support Helpfor the DisadvantagedBut racial preferences getless support.

845 Elite Schools GraduateFewest MinoritiesFewer graduate from affluentschools.

847 Few Poor Students AttendTop SchoolsMost attendees have wealthyfamilies.

848 Few Poor Students ScoreHigh on SATOnly 3 percent of poor stu-dents scored 1300.

851 ChronologyKey events since 1964.

852 ‘Percent Plans’ Offer Alternative to Race-BasedPreferencesBut critics say approach failsto level the playing field.

856 The Preference ProgramNobody Talks AboutRich kids known as “legacies”get breaks at top colleges.

857 At IssueWould many black and Latinoscience and math majors bebetter off at lesser-rankeduniversities?

FOR FURTHER RESEARCH

861 For More InformationOrganizations to contact.

862 BibliographySelected sources used.

863 The Next StepAdditional articles.

863 Citing CQ ResearcherSample bibliography formats.

AFFIRMATIVE ACTION

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Affirmative Action

THE ISSUESNo white politician

could have gotten thequestion George

Stephanopoulos of ABC Newsasked Sen. Barack Obama.“You said . . . that affluentAfrican-Americans, like yourdaughters, should probablybe treated as pretty advan-taged when they apply to col-lege,” he began. “How specif-ically would you recommendchanging affirmative actionpolicies so that affluent African-Americans are not given ad-vantages and poor, less afflu-ent whites are?” 1

The Democratic presiden-tial nominee, speaking duringa primary election debate inApril, said his daughters’ ad-vantages should weigh morethan their skin color. “Youknow, Malia and Sasha, they’vehad a pretty good deal.” 2

But a white applicantwho has overcome big oddsto pursue an educationshould have those circum-stances taken into account,Obama said. “I still believein affirmative action as ameans of overcoming both historicand potentially current discrimina-tion,” Obama said, “but I think that itcan’t be a quota system and it can’tbe something that is simply appliedwithout looking at the whole person,whether that person is black, or whiteor Hispanic, male or female.” 3

Supporting affirmative action on theone hand, objecting to quotas on theother — Obama seemed to know hewas threading his way through a mine-field. Decades after it began, affirma-tive action is seen by many whites asnothing but a fancy term for racialquotas designed to give minorities an

unfair break. Majority black opinionremains strongly pro-affirmative ac-tion, on the grounds that the legacyof racial discrimination lives on.Whites and blacks are 30 percentagepoints apart on the issue, accordingto a 2007 national survey by the non-partisan Pew Research Center. 4

Now, with the candidacy of Co-lumbia University and Harvard LawSchool graduate Obama turning up thevolume on the debate, voters in twostates will be deciding in Novemberwhether preferences should remain ineffect in state government hiring andstate college admissions.

Originally, conflict over af-firmative action focused onhiring. But during the past twodecades, the debate has shift-ed to whether preferenceshould be given in admis-sions to top-tier state schools,such as the University of Cal-ifornia at Los Angeles (UCLA)based on race, gender or eth-nic background. Graduatingfrom such schools is seen asan affordable ticket to the goodlife, but there aren’t enoughplaces at these schools for allapplicants, so many qualifiedapplicants are rejected.

Resentment over the notionthat some applicants got an ad-vantage because of their an-cestry led California voters in1996 to ban affirmative actionin college admissions. Fouryears later, the Florida legisla-ture, at the urging of then-Gov.Jeb Bush, effectively eliminat-ed using race as an admissionstandard for colleges and uni-versities. And initiatives similarto the California referendumwere later passed in Wash-ington state and then in Michi-gan, in 2006.

Race is central to the af-firmative action debate be-

cause the doctrine grew out of thecivil rights movement and the CivilRights Act of 1964, which outlaweddiscrimination based on race, ethnici-ty or gender. The loosely defined termgenerally is used as a synonym foradvantages — “preferences” — thatemployers and schools extend to mem-bers of a particular race, national ori-gin or gender.

“The time has come to pull theplug on race-based decision-making,”says Ward Connerly, a Sacramento,Calif.-based businessman who is thelead organizer of the Colorado andNebraska ballot initiative campaigns,

BY PETER KATEL

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Law student Jessica Peck Corry, executive director of theColorado Civil Rights Initiative, supports ConstitutionalAmendment 46, which would prohibit all governmententities in Colorado from discriminating for or againstanyone because of race, ethnicity or gender. Attorney

Melissa Hart counters that the amendment would end programs designed to reach minority groups.

844 CQ Researcher

as well as earlier ones elsewhere. “TheCivil Rights Act of 1964 talks abouttreating people equally without regardto race, color or national origin. Whenyou talk about civil rights, they don’tjust belong to black people.”

Connerly, who is black, supportsextending preferences of some kindto low-income applicants for jobs —

as long as the beneficiaries aren’t clas-sified by race or gender.

But affirmative action supporters saythat approach ignores reality. “If thereare any preferences in operation in oursociety, they’re preferences given topeople with white skin and who aremen and who have financial and otheradvantages that come with that,” says

Nicole Kief, New York-based state strate-gist for the American Civil LibertiesUnion’s racial justice program, which isopposing the Connerly-organized ballotinitiative campaigns.

Yet, of the 38 million Americans clas-sified as poor, whites make up the biggestshare: 17 million people. Blacks accountfor slightly more than 9 million and His-panics slightly less. Some 576,000 Na-tive Americans are considered poor. Look-ing beyond the simple numbers, however,reveals that far greater percentages ofAfrican-Americans and Hispanics are like-ly to be poor: 25 percent of African-Americans and 20 percent of Hispanicslive below the poverty line, but only 10percent of whites are poor. 5

In 2000, according to statistics com-piled by Chronicle of Higher EducationDeputy Editor Peter Schmidt, the aver-age white elementary school student at-tended a school that was 78 percentwhite, 9 percent black, 8 percent His-panic, 3 percent Asian and 30 percentpoor. Black or Hispanic children at-tended a school in which 57 percentof the student body shared their raceor ethnicity and about two-thirds of thestudents were poor. 6

These conditions directly affect col-lege admissions, according to The Cen-tury Foundation. The liberal think tankreported in 2003 that white students ac-count for 77 percent of the students athigh schools in which the greatest ma-jority of students go on to college. Blackstudents account for only 11 percent ofthe population at these schools, andHispanics 7 percent. 7

A comprehensive 2004 study by theUrban Institute, a nonpartisan think tank,found that only about half of black andHispanic high school students gradu-ate, compared to 75 and 77 percent,respectively, of whites and Asians. 8

Politically conservative affirmativeaction critics cite these statistics to arguethat focusing on college admissionsand hiring practices rather than schoolreform was a big mistake. The criticsget some support from liberals who

AFFIRMATIVE ACTION

Americans Support Boost for Disadvantaged

A majority of Americans believe that individuals born into poverty can overcome their disadvantages and that society should be giving them special help (top poll). Fewer, however, endorse race-based affirmative action as the way to help (bottom).

Source: Anthony P. Carnevale and Stephen J. Rose, “Socioeconomic Status, Race/ Ethnicity, and Selective College Admissions,” The Century Foundation, March 2003

Agree Disagree

We should help people who are working hard to overcome disadvantages and succeed in life. 93% 6

People who start out with little and worktheir way up are the real success stories. 91 7

Some people are born poor, and there’snothing we can do about that. 26 72

We shouldn’t give special help at all,even to those who started out with more disadvantages than most. 16 81

If there is only one seat available, which student would you admit to college, the high-income student or the low-income student?

Percentage selecting:Low-income High-income

student student

If both students get the same admissionstest score? 63% 3%

If low-income student gets a slightlylower test score? 33 54

If the low-income student is also black,and the high-income student is white? 36 39

If the low-income student is also Hispanic, and the high-income student is not Hispanic? 33 45


want to keep affirmative action — aslong as it’s based on socioeconomicstatus instead of race. “Affirmative ac-tion based on race was always kindof a cheap and quick fix that bypassedthe hard work of trying to developthe talents of low-income minority stu-dents generally,” says Richard D.Kahlenberg, a senior fellow at TheCentury Foundation.

Basing affirmative action on classinstead of race wouldn’t exclude racialand ethnic minorities, Kahlenberg ar-gues, because race and class are soclosely intertwined.

President Lyndon B. Johnson notedthat connection in a major speech thatlaid the philosophical foundations foraffirmative action programs. Theseweren’t set up for another five years,a reflection of how big a change theyrepresented in traditional hiring and pro-motion practices, where affirmative ac-tion began. “You do not take a personwho, for years, has been hobbled bychains and liberate him, bring him upto the starting line of a race and thensay, ‘You are free to compete with allthe others,’ and still justly believe thatyou have been completely fair,” John-son said in “To Fulfill These Rights,”his 1965 commencement speech atHoward University in Washington, D.C.,one of the country’s top historicallyblack institutions. 9

By the late 1970s, a long string ofU.S. Supreme Court decisions began set-ting boundaries on affirmative action,partly in response to white job and schoolapplicants who sued over “reverse dis-crimination.” The court’s bottom line:Schools and employers could take raceinto account, but not as a sole criterion.Setting quotas based on race, ethnicityor gender was prohibited. (The prohi-bition of gender discrimination effectivelyended the chances for passage of theproposed Equal Rights Amendment [ERA],which feminist organizations had beenpromoting since 1923. The Civil RightsAct, along with other legislation and courtdecisions, made many supporters of

women’s rights “lukewarm” about theproposed amendment, Roberta W. Fran-cis, then chair of the National Councilof Women’s Organizations’ ERA taskforce, wrote in 2001). 10

The high court’s support for affir-mative action has been weakeningthrough the years. Since 1991 thecourt has included Justice ClarenceThomas, the lone black member anda bitter foe of affirmative action. Inhis 2007 autobiography, Thomaswrote that his Yale Law School de-gree set him up for rejection by majorlaw firm interviewers. “Many askedpointed questions unsubtly suggestingthat they doubted I was as smart asmy grades indicated,” he wrote. “NowI knew what a law degree from Yalewas worth when it bore the taint ofracial preference.” 11

Some of Thomas’ black classmatesdispute his view of a Yale diploma’sworth. “Had he not gone to a schoollike Yale, he would not be sitting onthe Supreme Court,” said WilliamColeman III, a Philadelphia attorney

who was general counsel to the U.S.Army in the Clinton administration. 12

But that argument does not seemto impress Thomas, who was in a 5-4minority in the high court’s most re-cent affirmative action ruling, in whichthe justices upheld the use of race inlaw-school admissions at the Univer-sity of Michigan. But even JusticeSandra Day O’Connor, who wrote themajority opinion, signaled unease withher position. In 25 years, she wrote,affirmative action would “no longerbe necessary.” 13

Paradoxically, an Obama victory onNov. 4 might be the most effective anti-affirmative action event of all.

“The primary rationale for affirmativeaction is that America is institutionallyracist and institutionally sexist,” Conner-ly, an Obama foe, told The AssociatedPress. “That rationale is undercut in amajor way when you look at the suc-cess of Sen. [Hillary Rodham] Clintonand Sen. Obama.”

Asked to respond to Connerly’s re-marks, Obama appeared to draw

Elite Schools Graduate Fewest Minorities

Among college-bound blacks and Hispanics, larger percentages graduated from “less advantaged” high schools than from the “most advantaged” schools.

Source: Anthony P. Carnevale and Stephen J. Rose, “Socioeconomic Status, Race/Ethnicity, and Selective College Admissions,” Century Foundation, March 2003

Percentage of High School Seniors Going toFour-year Colleges, by Race

0% 20 40 60 80 100 120

AsianBlackHispanicWhite

AttendedMore-Advantaged

Schools

AttendedLess-Advantaged

Schools

9%

4

7%

6%

13%

13%

17%

11%

13%

14%

9%

7%

65%

68%

76%

77%

846 CQ Researcher

some limits of his own on affirmativeaction. “Affirmative action is not goingto be the long-term solution to theproblems of race in America,” he tolda July convention of minority journalists,“because, frankly, if you’ve got 50 per-cent of African-American or Latinokids dropping out of high school, itdoesn’t really matter what you do interms of affirmative action; those kidsare not getting into college.” 14

As cr i t ics andsupporters discussthe future of affir-mative action, hereare some of the ques-tions being debated:

Has affirmativeaction outlived itsusefulness?

In the United Statesof the late 1960s and’70s, even some out-right opponents ofrace-based affirmativeaction conceded thatit represented an at-tempt to deal with theconsequences oflongstanding, system-atic racial discrimina-tion, which had legal-ly ended only shortly before.

But ever since opposition to affir-mative action began growing in the1980s, its opponents themselves haveinvoked the very principles that thecivil rights movement had embraced inits fight to end discrimination. Takinga job or school applicant’s race or eth-nicity into account is immoral, opponentsargue, even for supposedly benign pur-poses. And a policy of racial/ethnicpreferences, by definition, cannot leadto equality.

In today’s United States, critics say,minority applicants don’t face anydanger that their skin color or ethnicheritage will hold them back. Instead,affirmative-action beneficiaries facecontinuing skepticism from others —

and even from themselves, that theysomehow were given an advantagethat their academic work didn’t entitlethem to receive.

Meanwhile, opponents and sup-porters readily acknowledge that a dis-proportionate share of black and Lati-no students receive substandardeducations, starting in and lastingthrough high school. Affirmative ac-tion hasn’t eliminated the link between

race/ethnicity and poverty and acad-emic deprivation, they agree.

Critics of race preferences, howev-er, say they haven’t narrowed the di-vide that helped to trigger affirmativeaction in the first place. Affirmative ac-tion advocates favor significantly re-forming K-12 education while simul-taneously giving a leg up to minoritieswho managed to overcome their oddsat inadequate public schools.

And some supporters say affirma-tive action is important for other rea-sons, which transcend America’s racialhistory. Affirmative action helps toensure continuation of a democraticpolitical culture, says James E. Cole-man Jr., a professor at Duke Univer-sity Law School.

“It’s not just about discriminationor past discrimination,” says Cole-man, who attended all-black schoolswhen growing up and then graduat-ed from Harvard College and Co-lumbia Law School in the early 1970s,during the early days of affirmativeaction. “It’s in our self-interest. Wewant leaders of all different back-grounds, all different races; we oughtto educate them together.”

But Connerly, theCalifornia businessmanbehind anti-affirmativeaction ballot initiatives,says that race and gen-der preferences are thewrong tool with whichto promote diversity, be-cause they effectivelyerode academic stan-dards. “Excellence canbe achieved by anygroup of people,” saysConnerly, a former mem-ber of the University ofCalifornia Board of Re-gents. “So we will keepthe standards where theyought to be, and we willexpect people to meetthose standards.”

But legislators inter-ested in a “quick fix” have found it sim-pler to mandate diversity than to deviseways to improve schools. “There aretimes when someone has to say, ‘Thisisn’t right. We’re going to do somethingabout it,’ ” Connerly says. “But in thelegislative process, I can find no evi-dence of leadership anywhere.”

Like others, Connerly also cites theextraordinary academic achievementsof Asian-American students — whohaven’t benefited from affirmative ac-tion. Affirmative action supporters don’ttry to dispute that point. “At the Uni-versity of California at Berkeley, 40 per-cent of the students are Asian,” saysTerry H. Anderson, a history profes-sor at Texas A&M University in Col-lege Station. “What does that say about

AFFIRMATIVE ACTION

Asian-American enrollment at the University of California at Berkeleyrose dramatically after California voters in 1996 approved Proposition

209, a ballot initiative that banned affirmative action at all state institutions. Enrollment of African-American, Hispanic

and Native American students, however, plunged.

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family structure? It makes a big state-ment. Family structure is so impor-tant, and it’s something that affirma-tive action can’t help at all.”

But if encouraging minority-groupenrollment at universities doesn’t serveas a social and educational cure-all, saysAnderson, who has written a history ofaffirmative action, the policy still servesa valuable purpose. “It’s become partof our culture. On this campus, it’s been‘out’ to be racist for years and years.I’m looking at kids born in 1990; theyjust don’t feel self-conscious about raceor gender, they just expect to be treat-ed equally.”

Standing between the supportersand the enemies of affirmative action’sracial/ethnic preferences are the affir-mative action reformers. “I don’t thinkit’s time to completely abolish allforms of affirmative action,” says theCentury Foundation’s Kahlenberg. “Butit’s clear there are strong legal, moraland political problems with relyingsolely on race.”

And at the practical level, race isn’tthe only gauge of hardship that somestudents must overcome, even to becapable of competing for admissionto a top-tier school. “There are stu-dents from low-income backgrounds,”Kahlenberg says, “who aren’t given thesame opportunities as wealthier stu-dents are given, and they deserve aleg up in admissions. Someone’s testscores and grades are a reflection notonly of how hard they work and howtalented they are, but what sorts ofopportunities they’ve had.”

Does race-based affirmative action still face powerful publicopposition?

At the state and federal level, af-firmative action has generated enor-mous conflict over the decades,played out in a long chain of law-suits and Supreme Court decisions,as well as the hard-fought ballot ini-tiatives this year in Arizona, Missouriand Oklahoma — all three of which

ended in defeat for race, ethnic andgender preferences.

But today’s political agenda — dom-inated by the global financial crisis, thecontinuing downward slide of real es-tate prices, the continuing conflict inIraq and escalated combat in Afghanistan— would seem to leave little space fora reignited affirmative action conflict.

Nevertheless, supporters and oppo-nents of affirmative action fought hardin five states over proposed ballot ini-tiatives, two of which will go beforevoters in November.

Nationally, the nonpartisan Pew Re-search Center reported last year thatblack and white Americans are divid-ed by a considerable margin on whetherminority group members should getpreferential treatment. Among blacks,57 answered yes, but only 27 percentof whites agreed. That gap was some-what bigger in 1991, when 68 percentof blacks and only 17 percent of whitesfavored preferences. 15

Obama’s statement to ABC News’Stephanopoulos that his daughters

shouldn’t benefit from affirmative ac-tion reflected awareness of majoritysentiment against race preference. 16

Still, the exchange led to some pre-dictions that it would resurface. “Theissue of affirmative action is likely todog Sen. Obama on the campaign trailas he seeks to win over white, blue-collar voters in battleground states likeMichigan,” The Wall Street Journal pre-dicted in June. 17

Just two and a half weeks beforethe election, that forecast hadn’t cometo pass. However, earlier in the yearinterest remained strong enough thatcampaigners for state ballot initiativeswere able to gather 136,589 signaturesin Nebraska and about 130,000 in Col-orado to require that the issue be putbefore voters in those states.

Meanwhile, the initiative efforts inArizona, Missouri and Oklahoma weredoomed after the validity of petitionsignatures was challenged in thosestates. Connerly, the chief organizer ofthe initiatives, blames opponents’ tac-tics and, in Oklahoma, an unusually

Few Poor Students Attend Top Schools

Nearly three-quarters of students entering tier 1 colleges and universities come from the wealthiest families, but only 3 percent of students from the bottom quartile enter top schools. Far more students from poorer backgrounds enroll in less prestigious schools, and even more in community colleges.


Socioeconomic Status of Entering College Classes

School First Second Third Fourth prestige quartile quartile quartile quartile level (lowest) (highest)

Tier 1 3% 6% 17% 74%

Tier 2 7 18 29 46

Tier 3 10 19 36 35

Tier 4 16 21 28 35

Community 21 30 27 22Colleges

848 CQ Researcher

short, 90-day window during whichsignatures must be collected. But onceinitiatives get on ballots, he says, vot-ers approve them. “There is somethingabout the principle of fairness that mostpeople understand.”

Without congressional legislationprohibiting preferences, Connerlysays, the initiatives are designed toforce state governments “to abide bythe moral principle that racial dis-crimination — whether against a whiteor black or Latino or Native American— is just wrong.”

But reality can present immoral cir-cumstances as well, affirmative actiondefenders argue. “Racial discriminationand gender discrimination continue topresent obstacles to people of colorand women,” says the American CivilLiberties Union’s (ACLU) Kief. “Affir-mative action is a way to chip awayat some of these obstacles.”

Kief says the fact that Connerly has

played a central role in all of the ini-tiatives indicates that true grassrootsopposition to affirmative action is weakin states where initiatives have passedor are about to be voted on.

However, The Century Founda-tion’s Kahlenberg points out that pro-affirmative action forces work hardto block ballot initiatives, becausewhen such initiatives have gone be-fore voters they have been approved.And the most recent successful bal-lot initiative, in Michigan in 2006,passed by a slightly bigger margin— 57 percent to 43 percent — thanits California counterpart in 1996,which was approved by 54-46. 18

Further evidence that anti-affirmativeaction initiatives are hard to fight sur-faced this year in Colorado, where thegroup Coloradans for Equal Opportu-nity failed to round up enough sig-natures to put a pro-affirmative actioninitiative on the ballot.

Kahlenberg acknowledges that af-firmative action politics can be tricky.Despite abiding public opposition topreferences, support among blacks isso strong that Republican presidentialcampaigns tend to downplay affirma-tive action, for fear of triggering a hugeturnout among black voters, who voteoverwhelmingly Democratic. In 1999,then-Florida Gov. Jeb Bush kept aConnerly-sponsored initiative out ofthat state largely in order to lessen thechances of a major black Democraticmobilization in the 2000 presidentialelection, in which his brother wouldbe running. 19

“When you have an initiative on theballot,” Kahlenberg says, “some Re-publicans think that it increases mi-nority turnout, so they’re not surewhether these initiatives play to theirparty or not.” Republican opposition toaffirmative action goes back to the Rea-gan administration. Reagan, however,passed up a chance to ban affirmativeaction programs throughout the feder-al government, displaying a degree ofGOP ambivalence. However, Conner-ly is an outspoken Republican. 20

Nevertheless, an all-out Republi-can push against affirmative actionduring the past decade failed to catchon at the national level. In 1996, for-mer Republican Senate Majority LeaderBob Dole of Kansas was running forpresident, and the affirmative actioninitiative was on the same ballot inCalifornia. “The initiative passed, butthere was no trickle-down help forBob Dole,” says Daniel A. Smith, apolitical scientist at the University ofFlorida who has written on affirma-tive action politics.

This year, to be sure, anxieties grow-ing out of the financial crisis and eco-nomic slowdown could rekindle pas-sions over preferences. But Smith arguesthe economic environment makesfinger-pointing at minorities less likely.“Whites are not losing jobs to African-Americans,” he says. “Whites andAfrican-Americans are losing jobs to the

AFFIRMATIVE ACTION

Few Poor Students Score High on SAT

Two-thirds of students who scored at least 1300 on the SAT came from families ranking in the highest quartile of socioeconomic status, compared with only 3 percent of students from the lowest-income group. Moreover, more than one-fifth of those scoring under 1000 — and 37 percent of non-test-takers — come from the poorest families.

* The maximum score is 1600

Note: Percentages do not add to 100 due to rounding.


SAT Scores by Family Socioeconomic Status*

Score First Second Third FourthQuartile Quartile Quartile Quartile(lowest) (highest)

>1300 3% 10% 22% 66%

1200-1300 4 14 23 58

1100-1200 6 17 29 47

1000-1100 8 24 32 36

<1000 21 25 30 24

Non-taker 37 30 22 10


Asian subcontinent — they’re going toBangalore. The global economy makesit more difficult to have a convenientdomestic scapegoat for lost jobs.”

Has affirmative action divertedattention from the poor qualityof K-12 education in low-incomecommunities?

I f there’s onepoint on which every-one involved in theaffirmative action de-bate agrees, it’s thatpublic schools at-tended by most low-income students areworsening.

“The educationalachievement gap be-tween racial groupsbegan growing againin the 1990s,” GaryOrfield, a professorof education and so-cial policy at Har-vard Univers i ty ,wrote. “Our publicschools are becom-ing increasingly seg-regated by race and income, and thesegregated schools are, on average,strikingly inferior in many importantways, including the quality and ex-perience of teachers and the level ofcompetition from other students. . . .It is clear that students of differentraces do not receive an equal chancefor college.” 21

The decline in education qualityhas occurred at the same time vari-ous race-preference policies havegoverned admission to the nation’sbest colleges and universities. The poli-cies were designed to provide an in-centive for schools and students aliketo do their best, by ensuring that acollege education remains a possibil-ity for all students who perform wellacademically.

But the results have not been en-couraging. In California alone, only

36 percent of all high school studentsin 2001 had taken all the courses re-quired for admission to the state uni-versity system, according to a study bythe Civil Rights Project at Harvard Uni-versity. Among black students, only26 percent had taken the prerequisites,and only 24 percent of Hispanics. Mean-while, 41 percent of white students

and 54 percent of Asians had takenthe necessary courses. 22

In large part as a result of deficientK-12 education, decades of race-preference affirmative action at top-tiercolleges and universities have yieldedonly small percentages of black andHispanic students. In 1995, accordingto an exhaustive 2003 study by TheCentury Foundation, these students ac-counted for 6 percent of admissions tothe 146 top-tier institutions. 23

Socioeconomically, the picture iseven less diverse. Seventy-four percentof students came from families in thewealthiest quarter of the socioeconomicscale; 3 percent came from families inthe bottom quarter. 24

For race-preference opponents, thepicture demonstrates that efforts at en-suring racial and ethnic diversity inhigher education would have been bet-

ter aimed at improving K-12 schoolsacross the country.

“If you’ve tried to use race for 40-some years, and you still have thisprofound gap,” Connerly says, “yetcling to the notion that you have givensome affirmative action to black andLatino and American Indian students— though Asians, without it, are out-

stripping everybody —maybe the way we’vebeen doing it wasn’t theright way to do it.”

Meanwhile, he says,making a point thatechoes through black,conservative circles,“Historically black col-leges and universities(HBCUs) — if you lookat doctors and pharma-cists across our nation,you’ll find them comingfrom schools that are90 percent black. Theseschools are not very di-verse, but they put a pre-mium on quality.”

But not all HBCUs arein that class, affirmative

action supporters point out. “A lot ofpeople who come out with a degreein computer science from minority-serving institutions know absolutely nomathematics,” says Richard Tapia, amathematics professor at Rice Univer-sity and director of the university’s Cen-ter for Equity and Excellence in Edu-cation. “I once went to a historicallyblack university and had lunch with atop student who was going to do grad-uate work at Purdue, but when I talkedto her I realized that her knowledge ofmath was on a par with that of a Ricefreshman. The gap is huge.”

Tapia, who advocates better men-toring for promising minority studentsat top-flight institutions, argues that theeffect of relegating minority students toa certain defined group of colleges anduniversities, including historically blackinstitutions, limits their chances of

Democratic presidential candidate Sen. Barack Obama, speaking inPhiladelphia on Oct. 11, 2008, represents the new face of affirmative

action in the demographically changing United States: His father was Kenyan and a half-sister is half-Indonesian.

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advancement in society at large. “Fromthe elite schools you’re going to getleadership.”

Still, a question remains as towhether focusing on preferential ad-missions has helped perpetuate thevery conditions that give rise to pref-erences in the first place.

“At the K-12 level you could arguethat affirmative action has led to stag-nation,” says Richard Sander, a pro-fessor of law at UCLA Law School.“There’s very little forward movement,very little closing of the black-whitegap of the past 20 to 30 years.”

Coleman of Duke University agreesthat public education for most low-income students needs help. But thatissue has nothing to do with admis-sions to top-drawer universities andprofessional schools, he says. “Lookat minority students who get intoplaces like that,” he says. “For themost part, they haven’t gone to theweakest high schools; they’ve oftengone to the best.”

Yet the affirmative action conflictfocuses on black students, who areassumed to be academically under-qualified, Coleman says, while whitestudents’ place at the best schools isn’tquestioned. The classroom reality dif-fers, he says. “We have a whole rangeof students with different abilities. Allof the weak students are not minori-ty students; all of the strong studentsare not white students.”

BACKGROUNDRighting Wrongs

T he civil rights revolution of the1950s and ’60s forced a new

look at the policies that had lockedone set of Americans out of mosthigher-education institutions andhigher-paying jobs.

As early as 1962, the Congress ofRacial Equality (CORE), one of themost active civil-rights organizations,advocated hiring practices that wouldmake up for discrimination againstblack applicants. “We are approach-ing employers with the propositionthat they have effectively excludedNegroes from their work force a longtime, and they now have a respon-sibility and obligation to make up fortheir past sins,” the organization saidin a statement from its New Yorkheadquarters. 25

Facing CORE-organized boycotts, ahandful of companies in New York,Denver, Detroit, Seattle and Baltimorechanged their hiring procedures tofavor black applicants.

In July 1964, President Lyndon B.Johnson pushed Congress to pass thelandmark Civil Rights Act, which hadbeen championed by President JohnF. Kennedy since his 1960 presiden-tial election campaign.

The law’s Title VII, which prohibitsracial, religious or sexual discrimina-tion in hiring, said judges enforcingthe law could order “such affirmativeaction as may be appropriate” to cor-rect violations. 26

Title VII didn’t specify what kindof affirmative action could be de-creed. But racial preferences wereopenly discussed in the political arenaas a tool to equalize opportunities.Official working definitions of affir-mative action didn’t emerge until theend of the 1960s, under PresidentRichard M. Nixon.

In 1969, the administration approvedthe “Philadelphia Plan,” which set nu-merical goals for black and other mi-nority employment on federally fi-nanced construction jobs. One yearlater, the plan was expanded to coverall businesses with 50 or more em-ployees and federal contracts of atleast $50,000. The contracts were toset hiring goals and timetables de-signed to match up a firm’s minorityrepresentation with the workforce de-

mographics in its area. The specifiedminorities were: “Negro, Oriental,American Indian and Spanish SurnamedAmericans.” 27

The sudden change in the workplaceenvironment prompted a wave of law-suits. In the lead, a legal challenge by13 black electric utility workers in NorthCarolina led to one of the most influ-ential U.S. Supreme Court decisions onaffirmative action, the 1971 Griggs v.Duke Power Co. case. 28

In a unanimous decision, the highcourt concluded that an aptitude testthat was a condition of promotionfor the workers violated the CivilRights Act. Duke Power may not haveintended the test to weed out blackapplicants, Chief Justice Warren E.Burger wrote in the decision. But, headded, “Congress directed the thrustof the Act to the consequences ofemployment practices, not simply themotivation.” 29

If the point of the Civil Rights Actwas to ensure that the consequencesof institutions’ decisions yielded bal-anced workforces, then goals andtimetables to lead to that outcomewere consistent with the law as well.In other words, eliminating racial dis-crimination could mean paying at-tention to race in hiring and pro-motions.

That effort would produce a termthat captured the frustration and angeramong white males who were com-peting with minority-group membersfor jobs, promotions or school admis-sions: “reverse discrimination.”

The issue went national with a chal-lenge by Allan Bakke, a white, med-ical school applicant, to the Universi-ty of California. He’d been rejected twoyears in a row while minority-groupmembers — for whom 16 slots in the100-member class had been set aside— were admitted with lower qualify-ing scores.

After the case reached the SupremeCourt, the justices in a 5-4 decision in

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Chronology1960s Enactment ofcivil rights law opens nationaldebate on discrimination.

1964Civil Rights Act of 1964 bars discrim-ination in employment and at feder-ally funded colleges.

1965President Lyndon B. Johnson callsfor a massive national effort to createsocial and economic equality.

1969Nixon administration approves“Philadelphia Plan” setting numericalgoals for minority employment on allfederally financed building projects.

•

1970s-1980sAffirmative action expandsthroughout the country,prompting legal challenges andgrowing voter discontent, lead-ing to new federal policy.

1971The U.S. Supreme Court’s landmarkGriggs v. Duke Power Co. decision,growing out of a challenge by 13black electric utility workers inNorth Carolina, is seen as authoriz-ing companies and institutions toset out goals and timetables forminority hiring.

1978Supreme Court’s decision in Uni-versity of California Regents v.Bakke, arising from a medical-school admission case, rules outracial quotas but allows race to beconsidered with other factors.

1980Ronald W. Reagan is elected presi-dent with strong support from

white males who see affirmativeaction as a threat.

1981-1983Reagan administration reduces affir-mative action enforcement.

1985Attorney General Edwin Meese IIIdrafts executive order outlawingaffirmative action in federal gov-ernment; Reagan never signs it.

1987Supreme Court upholds job promo-tion of a woman whose advance-ment was challenged by a male col-league claiming higher qualifications.

•

1990s Ballot initiativesbanning race and gender pref-erences prompt President BillClinton to acknowledge faultsin affirmative action.

1994White voter discontent energizes the“Republican revolution” that topplesDemocrats from control of Congress.

1995Supreme Court rules in AdarandConstructors v. Peña that affirmativeaction programs must be “narrowlytailored” for cases of extreme dis-crimination. . . . Clinton concedesthat affirmative action foes havesome valid points but concludes,“Mend it, but don’t end it.” . . .Senate votes down anti-affirmativeaction bill.

1996California voters pass nation’s firstballot initiative outlawing racial, eth-nic and gender preferences. . . .5th U.S. Circuit Court of Appealsrules that universities can’t take raceinto account in evaluating applicants.

1998Washington state voters pass ballotinitiative identical to California’s.

•

2000s Affirmative ac-tion in university admissionsstays on national agenda, lead-ing to major Supreme Courtruling; Sen. Barack Obama’spresidential candidacy focusesmore attention on the issue.

2003Supreme Court’s Gratz v. Bollingerruling rejects University of Michiganundergraduate admission system forawarding extra points to minorityapplicants, but simultaneous Grutterv. Bollinger decision upholds UMlaw school admissions policy,which includes race as one factoramong many. . . . Justice SandraDay O’Connor writes in 5-4 majorityopinion in Grutter that affirmativeaction won’t be necessary in 25years. . . . Century Foundationstudy finds strong linkage betweensocioeconomic status, race andchances of going to college.

2006Michigan passes nation’s third ballotinitiative outlawing racial, ethnicand gender preferences.

2008Opponents of affirmative action inArizona, Missouri and Oklahomafail to place anti-affirmative actioninitiatives on ballot, but similarcampaigns succeed in Coloradoand Nebraska. . . . U.S. Civil RightsCommission opens study of minoritystudents majoring in science andmath. . . . Saying his daughters areaffluent and shouldn’t benefit fromrace preferences, Obama endorsesaffirmative action for struggling,white college applicants.

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1978 ordered Bakke admitted and pro-hibited the use of racial quotas. Butthey allowed race to be consideredalong with other criteria. Representingthe University of California was for-mer Solicitor General Archibald Cox,the Watergate special prosecutor whowas fired on orders of President Nixonin 1973. Cox’s granddaughter, MelissaHart, helps lead the opposition to ananti-affirmative action ballot initiativein Colorado (see p. 855). 30

In 1979 and 1980, the court upheldworker training and public contract-

ing policies that included so-called set-asides for minority-group employeesor minority-owned companies. But inthe latter case, the deciding opinionspecified that only companies that ac-tually had suffered discrimination wouldbe eligible for those contracts. 31

Divisions within the SupremeCourt reflected growing tensions inthe country as a whole. A number ofwhite people saw affirmative actionas injuring the educational and careeradvancement of people who hadn’tthemselves caused the historical crimesthat gave rise to affirmative action.

Reversing Course

P resident Ronald W. Reagan tookoffice in 1981 with strong support

from so-called “Reagan Democrats” —white, blue-collar workers who had turnedagainst their former party on issues in-cluding affirmative action. 32

Initially, Reagan seemed poised tofulfill the hopes of those who want-ed him to ban all preferences basedon race, ethnicity and gender. Thelatter category followed an upsurgeof women fighting to abolish limits

AFFIRMATIVE ACTION

Continued from p. 850

I n recent years, voters and judges have blocked race and eth-nicity preferences in university admissions in three big stateswith booming minority populations — California, Florida and

Texas. Nonetheless, lawmakers devised a way to ensure that pub-lic universities remain open to black and Latino students.

The so-called “percent plans” promise guaranteed admissionbased on a student’s high school class standing, not on skintone. That, at least is the principle.

But the man who helped end racial affirmative action prefer-ences in two of the states involved argues affirmative action isalive and well, simply under another name. Moreover, says WardConnerly, a black businessman in Sacramento, Calif., who has beena leader in organizing anti-affirmative action referendums, the realissue — the decline in urban K-12 schools — is being ignored.

“Legislatures and college administrators lack the spine to say,‘Let’s find the problem at its core,’ ” says Connerly, a formermember of the University of California Board of Regents. “In-stead, they go for a quick fix they believe will yield the samenumber of blacks and Latinos as before.”

Even Connerly’s opponents agree “percent plans” alone don’tput high schools in inner cities and prosperous suburbs on anequal footing. “In some school districts in Texas, 50 percent ofthe graduates could make it here easily,” says Terry H. Anderson,a history professor at Texas A&M University in College Station.“Some school districts are so awful that not one kid could grad-uate here, I don’t care what race you’re talking about.”

All the plans — except at selective schools — ignore SAT orACT scores (though students do have to present their scores). Thepolicy troubles Richard D. Kahlenberg, a senior fellow at The Cen-tury Foundation, who champions “class-based” affirmation action.“The grade of A in one high school is very different from thegrade of A in another,” he says.

Texas lawmakers originated the percent plan concept after a5th U.S. Circuit Court of Appeals decision in 1996 (Hopwood v.Texas) prohibited consideration of race in college admissions.Legislators proposed guaranteeing state university admissions tothe top 10 percent of graduates of the state’s public and pri-vate high schools. Then-Gov. George W. Bush signed the bill,which includes automatic admission to the flagship campuses,the University of Texas at Austin and Texas A&M. 1

In California, the impetus was the 1996 voter approval of Propo-sition 209, which prohibited racial and ethnic preferences by allstate entities. Borrowing the Texas idea, California lawmakers de-vised a system in which California high school students in the top4 percent of their classes are eligible for the California system, butnot necessarily to attend the two star institutions, UC Berkeley andUCLA. (Students in the top 4 percent-12.5 percent range are ad-mitted to community colleges and can transfer to four-year insti-tutions if they maintain 2.4 grade-point averages.) 2

Connerly was active in the Proposition 209 campaign and wasthe key player — but involuntarily — in Florida’s adoption of apercent plan. In 1999, Connerly was preparing to mount an anti-affirmative action initiative in Florida. Then-Gov. Jeb Bush worriedit could hurt his party’s standing with black voters — with pos-sible repercussions on his brother George’s presidential campaign.Instead Gov. Bush launched “One Florida,” a percent plan ap-proved by the legislature.

In Florida, the top 20 percent of high school graduates areguaranteed admission to the state system. To attend the flag-ship University of Florida at Gainesville they must meet tougherstandards. All three states also require students to have com-pleted a set of required courses.

Percent plan states also have helped shape admissionspolicies by experimenting with ways to simultaneously keep

‘Percent Plans’ Offer Alternative to Race-Based PreferencesBut critics say approach fails to level playing field.


on their education and career possi-bilities.

Yet Reagan’s appointees were divid-ed on the issue, and the president him-self never formalized his rejection of quo-tas and related measures. Because nolaw required the setting of goals andtimetables, Reagan could have bannedthem by executive order. During Rea-gan’s second term, Attorney GeneralEdwin Meese III drafted such an order.But Reagan never signed it.

Nevertheless, the Reagan adminis-tration did systematically weaken en-forcement of affirmative action. In

Reagan’s first term he cut the budgetsof the Equal Employment Opportuni-ty Commission and the Office of Fed-eral Contract Compliance — the twofront-line agencies on the issue — by12 and 34 percent, respectively, be-tween 1981 and 1983. As a result, thecompliance office blocked only twocontractors during Reagan’s two terms,compared with 13 that were barredduring President Jimmy Carter’s term.

The Justice Department also beganopposing some affirmative action plans.In 1983, Justice won a partial courtreversal of an affirmative action plan

for the New Orleans Police Depart-ment. In a police force nearly devoidof black supervisors, the plan was de-signed to expand the number — amove considered vital in a city whosepopulation was nearly one-half black.

Affirmative action cases kept mov-ing through the Supreme Court. In1984-1986, the court overturned plansthat would have required companiesdoing layoffs to disregard the cus-tomary “first hired, last fired” rule, be-cause that custom endangered mostblack employees, given their typicallyshort times on the job.

academic standards high, while en-suring at least the possibility thatpromising students of all socioeco-nomic circumstances have a shot atcollege.

In Florida, the consequences ofmaintaining high admissions standardsat UF were softened by another pro-gram, “Bright Futures,” which offerstuition reductions of 75 percent — orcompletely free tuition — dependingon completion of AP courses and onSAT or ACT scores.

The effect, says University ofFlorida political scientist Daniel A.Smith, is to ensure a plentiful sup-ply of top students of all races andethnicities. “We have really talentedminorities — blacks, Latinos, Asian-Americans — because ‘One Florida’in combination with ‘Bright Futures’has kept a lot of our talented students in the state. We havestudents who turned down [partial] scholarships to Duke andHarvard because here they’re going for free.”

At UCLA, which also has maintained rigorous admissioncriteria, recruiters spread out to high schools in low-incomeareas in an effort to ensure that the school doesn’t become anoasis of privilege. The realities of race and class mean thatsome of that recruiting work takes place in mostly black orLatino high schools.

“It’s the fallacy of [Proposition] 209 that you can immedi-ately move to a system that doesn’t take account of race and

that treats everybody fairly,” said TomLifka, a UCLA assistant vice chancellorin charge of admissions. He said the newsystem meets legal standards. 3

Consciously or not, Lifka was echoingthe conclusion of the most thoroughanalysis of the plans’ operations in thethree states. The 2003 study, sponsoredby Harvard University’s Civil Rights Pro-ject, concluded that the states had large-ly succeeded in maintaining racial andethnic diversity on their campuses.

But the report added that aggressiverecruitment, academic aid to highschools in low-income areas and similarmeasures played a major role.

“Without such support,” wrote Cather-ine L. Horn, an education professor atthe University of Houston, and Stella M.Flores, professor of public policy andhigher education at Vanderbilt, “the plans

are more like empty shells, appearing to promise eligibility, ad-mission and enrollment for previously excluded groups but ac-tually doing very little.” 4

1 Catherine L. Horn and Stella M. Flores, “Percent Plans in College Admis-sions: A Comparative Analysis of Three States’ Experiences,” Civil RightsProject, Harvard University, 2003, pp. 20-23, www.civilrightsproject.ucla.edu/re-search/affirmativeaction/tristate.pdf.2 Ibid.3 Quoted in David Leonhardt, “The New Affirmative Action,” The New YorkTimes Magazine, Sept. 30, 2007, p. 76.4 Horn and Flores, op. cit., pp. 59-60.

“The time has come to pull the plug onrace-based decision-making,” says Ward

Connerly, a Sacramento, Calif.,businessman who spearheaded anti-

affirmative action ballot initiatives inColorado, Nebraska and other states.

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And in 1987, a 5-4Supreme Court deci-sion upheld an Al-abama state policeplan requiring that50 percent of pro-motions go to blackofficers. The sameyear, the court up-held 6-3 the promo-tion of a woman em-ployee of Santa ClaraCounty, Calif., whogot promoted over amale candidate whohad scored slightlyhigher on an assess-ment. The decisionmarked the f i rs tcourt endorsement ofaffirmative action forwomen.

In the executivebranch , d iv idedviews persisted in theadministration of Reagan’s Republicansuccessor, George H. W. Bush. In 1990Bush vetoed a pro-affirmative actionbill designed to reverse recent SupremeCourt rulings, one of which effective-ly eased the way for white men tosue for reverse discrimination.

The legislation would have re-quired “quotas,” Bush said, explaininghis veto. But the following year, hesigned a compromise, the Civil RightsAct of 1991. 33 Supported by the civilrights lobby, the bill wrote into lawthe Griggs v. Duke Power requirementthat an employer prove that a jobpractice — a test, say — is requiredfor the work in question. A practicethat failed that test could be shownto result in discrimination, even if thathadn’t been the intention.

Bush also reversed a directive by hisWhite House counsel that would haveoutlawed all quotas, set-asides and re-lated measures. The administration’sambivalence reflected divided views inAmerican society. Local government andcorporate officials had grown appre-

ciative of affirmative action for calmingracial tensions. In 1985, the white Re-publican mayor of Indianapolis refuseda Justice Department request to end af-firmative action in the police depart-ment. Mayor William Hudnut said thatthe “white majority has accepted thefact that we’re making a special effortfor minorities and women.” 34

Yet among white males, affirmativeaction remained a very hot-buttonissue. “When we hold focus groups,”a Democratic pollster said in 1990, “ifthe issue of affirmative action comes up,you can forget the rest of the session.That’s all . . . that’s talked about.” 35

Mending It

F rom the early 1990s to 2003 race-based affirmative action suffered

damage in the political arena and thecourts.

In 1994, white male outrage at pref-erences for minority groups and women

was a key factor in con-gressional elections thattoppled Democrats fromcontrol of both houses.As soon as the Congresschanged hands, its newleaders targeted affir-mative action. “Some-times the best-qualifiedperson does not get thejob because he or shemay be one color,” Ma-jority Leader Dole saidin a television inter-view. “That may not bethe way it should be inAmerica.” 36

The following year,the U.S. Supreme Courtimposed limits on the useof preferences, ruling ona white, male contractor’schallenge to a federal pro-gram that encouragedgeneral contractors to

favor minority subcontractors. JusticeO’Connor wrote in the 5-4 majorityopinion in Adarand Constructors v.Peña that any racial or ethnic prefer-ences had to be “narrowly tailored”to apply only to “pervasive, sys-tematic and obstinate discriminato-ry conduct.” 37

Some justices had wanted all pref-erences overturned. Though that po-sition failed to win a majority, the clearunease that O’Connor expressed addedto the pressure on politicians who sup-ported affirmative action.

In that climate, President Bill Clintongave a 1995 speech at the National Archivesin Washington in which he acknowl-edged that critics had a point. He saidhe didn’t favor “the unjustified preferenceof the unqualified over the qualified ofany race or gender.” But affirmative ac-tion was still needed because discrimi-nation persisted, Clinton added. His bot-tom line: “Mend it, but don’t end it.” 38

The slogan seemed to match na-tional politicians’ mood. One day afterClinton’s speech, the Senate voted down

AFFIRMATIVE ACTION

Supporters of affirmative action in Lansing, Mich., rally against aproposed statewide anti-affirmative action ballot initiative in September

2006; voters approved the proposal that November. The initiativefollowed a 2003 U.S. Supreme Court ruling upholding the use of race inlaw-school admissions at the University of Michigan. Justice Sandra DayO’Connor, who wrote the majority 5-4 opinion, predicted, however, that

in 25 years affirmative action would “no longer be necessary.”

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a bill to abolish all preferences, with19 Republicans siding with Democratsin a 61-36 vote.

But in California, one of the coun-try’s major affirmative action labora-tories, the “end it” argument provedmore popular. Racial/ethnic prefer-ences had become a major issue ina state whose minority populationwas booming. California’s higher-education system also included twoof the nation’s top public institutions:the University of California at Berkeley(UCB) and UCLA.

Among many white, Anglo Califor-nians, affirmative action had come tobe seen as a system under which blackand Latino applicants were getting intothose two schools at the expense ofwhites or Asians with higher gradesand SAT scores.

By 1996, the statewide universitysystem’s majority-Republican Board ofRegents voted to end all race, ethnicand gender preferences in admissions.The board did allow universities to takeapplicants’ socioeconomic circumstancesinto account.

And in the same year, Californiavoters approved Proposition 209, whichoutlawed all race, ethnicity and genderpreferences by all state entities. Con-nerly helped organize that referendumand followed up with successful cam-paigns in Washington state in 1998 andin Michigan in 2003.

Meanwhile, the “reverse discrimi-nation” issue that had been decidedin the Bakke case flared up in Texas,where Cheryl Hopwood and twoother white applicants to the Universi-ty of Texas law school challenged theirrejections, pointing to the admissionsof minority students with lower gradesand test scores. In 1996, the 5th U.S.Circuit Court of Appeals decided forthe plaintiffs, ruling that universitiescouldn’t take race into account whenassessing applicants.

The appeals judges had overruledthe Bakke decision, at least in theirjurisdiction of Texas, Mississippi and

Louisiana, yet the Supreme Court re-fused to consider the case.

But in 2003, the justices ruled ontwo separate cases, both centering onadmissions to another top-ranked pub-lic higher education system: the Uni-versity of Michigan. One case arosefrom admissions procedures for theundergraduate college, the other fromthe system for evaluating applicants tothe university’s law school. 39

The Supreme Court decided againstthe undergraduate admissions policy be-cause it automatically awarded 20 extrapoints on the university’s 150-pointevaluation scale to blacks, Latinos andAmerican Indians. By contrast, the lawschool took race into account in whatJustice O’Connor, in the majority opin-ion in the 5-4 decision, called a “highlyindividualized, holistic review” of eachcandidate aimed at producing a diversestudent population. 40

CURRENTSITUATION

‘Formal Equality’

I n the midst of war and the WallStreet meltdown, affirmative action

may not generate as many headlines asit used to. But the issue still packs enoughpunch to have put anti-affirmative ac-tion legislation up for popular vote inColorado and Nebraska this year.

“This is a progressive approach,”said Jessica Peck Corry, executive di-rector of the Colorado Civil Rights Ini-tiative, which is campaigning for pro-posed Constitutional Amendment 46.The amendement would prohibit allstate government entities from dis-criminating for or against anyone be-cause of race, ethnicity or gender.“America is too diverse to put intostagnant race boxes,” she says.

Melissa Hart, a co-chair of “No On46,” counters that the amendmentwould require “formal equality” thatshouldn’t be confused with the realthing. She likens the proposal to “alaw that says both the beggar and theking may sleep under a bridge.” In thereal world, she says, only one of themwill spend his nights in a bedroom.

Unlike California, Michigan and Wash-ington — the states where voters haveapproved initiatives of this type over thepast 12 years — the Colorado campaigndoesn’t follow a major controversy overcompetition for university admissions.

To be sure, Corry — a libertarian Re-publican law student, blogger and pastfailed candidate for state Senate — haspublicly opposed affirmative action forseveral years. 41 But Corry, who is alsoa policy analyst at the Denver-based In-dependence Institute, a libertarian thinktank, acknowledges that the referendumcampaign in Colorado owes its start toConnerly. He began taking the ballotinitiative route in the 1990s, after con-cluding that neither state legislatures norCongress would ever touch the subject.

“They just seem to lack the stom-ach to do what I and the majority ofAmericans believe should be done,”Connerly says. “Clearly, there’s a dis-connect between elected officials andthe people themselves.”

Connerly’s confidence grows out ofhis success with the three previousinitiatives. But this year, his attemptsto get his proposal before voters inArizona, Missouri and Oklahoma allfailed because his campaign workersdidn’t gather enough valid signaturesto get the initiatives on the ballot.

Connerly blames what he calls anoverly restrictive initiative process inOklahoma, as well as organized op-position by what he calls “blockers,”who shadowed signature-gatherersand disputed their explanations of theamendments.

Opponents had a different namefor themselves. “Our voter educatorswere simply that — voter educators,”

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said Brandon Davis, political directorof the Service Employees InternationalUnion in Missouri. “Ward Connerlyshould accept what Missourians said,and he should stop with the sore-loser talk.” 42

The opposition began deployingstreet activists to counter what theycall the deliberately misleading word-ing of the proposed initiatives. InColorado, Proposition 46 is officiallydescribed as a “prohibition against

discrimination by the state” and goeson to ban “preferential treatment toany individual or group on the basisof race, sex, color, ethnicity or na-tional origin.” 43

Continued on p. 858

Many critics say race-based affirmative action gives mi-nority college applicants an unfair advantage. But re-porter Peter Schmidt found an even more favored

population — rich, white kids who apply to top-tier schools.“These institutions feel very dependent on these prefer-

ences,” Schmidt writes in his 2007 book, Color and Money:How Rich White Kids Are Winning the War Over College Affir-mative Action. “They throw up their hands and say, ‘There’sno other way we can raise the money we need.’ ”

Colleges admit these students — “legacies,” in college-admission lingo — because their parents are donation-makinggraduates. Offspring of professors, administrators or (in the caseof top state universities) politically influential figures get open-door treatment as well.

“Several public college lobbyists, working in both state capitalsand with the federal government in and around Washington,have told me that they spend a significant portion of their timelobbying their own colleges’ admissions offices to accept certainapplicants at the behest of public officials,” Schmidt writes. 1

Especially in regard to legacies and the families’ donations,Schmidt says, “There is a utilitarian argument that the moneyenables colleges to serve students in need. But there isn’t acorrelation between how much money they’re bringing in andhelping low-income students.”

As deputy editor of the Chronicle of Higher Education, Schmidthas been covering affirmative action conflicts since his days asan Associated Press reporter writing about protests over racial ten-sions at the University of Michigan in the mid-1990s.

His book doesn’t deal exclusively with applicants from priv-ileged families — who, by the nature of American society, arealmost all white and academically well-prepared. But Schmidt’sexamination of privileged applicants frames his reporting onthe more familiar issues of preferences based on race, ethnic-ity and gender.

According to Schmidt, Harvard as of 2004 accepted about40 percent of the legacies who applied, compared to about 11 per-cent of applicants overall. In the Ivy League in general, childrenof graduates made up 10-15 percent of the undergraduates.

Though the issue is sensitive for college administrators,Schmidt found some members of the higher-education estab-lishment happy to see it aired.

“Admissions officers are the ones who are finding the promis-ing kids — diamonds in the rough — and getting emotionally

invested in getting them admitted, then sitting down with thedevelopment officer or the coach and finding that these kidsare knocked out of the running,” he says.

Some education experts dispute that conclusion. AbigailThernstrom, a senior fellow at the conservative Manhattan Insti-tute and vice-chair of the U.S. Commission on Civil Rights, op-poses “class-based” affirmative action (as well as racial/ethnicpreferences), calling it unneccessary. She says that when top-tierschools look at an applicant from a disadvantaged background“who is getting a poor education — a diamond in the rough butshowing real academic progress — and compare that student tosomeone from Exeter born with a silver spoon in his mouth, there’sno question that these schools are going to take that diamond inthe rough, if they think he or she will be able to keep up.”

But some of Schmidt’s findings echo what affirmative actionsupporters have observed. James E. Coleman Jr., a law pro-fessor at Duke University, argues against the tendency to focusall affirmative action attention on blacks and Latinos. “The ideais that any white student who gets here deserves to be here.They’re not questioned. This has always been true.”

At the same time, Coleman, who is black, agrees with Schmidtthat those who start out near the top of the socioeconomic lad-der have access to first-class educations before they even get tocollege. Coleman himself, who graduated from Harvard and fromColumbia Law School, says he never had a single white class-mate in his Charlotte, N.C., schools until he got accepted to apost-high school preparatory program at Exeter, one of the na-tion’s most prestigious prep schools. “I could tell that my edu-cational background and preparation were woefully inadequatecompared to students who had been there since ninth grade,” herecalls. “I had to run faster.”

Schmidt says the politics of affirmative action can give rise totactical agreements between groups whose interests might seemto conflict. In one dispute, he says, “Civil rights groups andhigher-education groups had a kind of uneasy alliance: The civilrights groups would not challenge the admissions process and goafter legacies as long as affirmative action remained intact.”

But, he adds, “There are people not at the table when adeal like that is struck. If you’re not a beneficiary of one or theother side of preferences, you don’t gain from that agreement.”

1 Peter Schmidt, Color and Money: How Rich White Kids Are Winning theWar Over College Affirmative Action (2007), p. 32.

The Preference Program Nobody Talks AboutHow “legacies” get breaks at top colleges.

no


At Issue:Would many black and Latino science and math majors bebetter off at lesser-ranked universities?Yes

yesROGERS ELLIOTTPROFESSOR EMERITUS, DEPARTMENT OFPSYCHOLOGY AND BRAIN SCIENCES, DARTMOUTH COLLEGE

FROM TESTIMONY BEFORE U.S. CIVIL RIGHTS COMMISSION, SEPT. 12, 2008

race preferences in admissions in the service of affirma-tive action are harming the aspirations, particularly, ofblacks seeking to be scientists.

The most elite universities have very high levels in theiradmission standards, levels which minorities — especiallyblacks — don’t come close to meeting.

[Thus], affirmative action in elite schools, which they pursuevigorously and successfully, leaves a huge gap, probably big-ger than it would be for affirmative action at an averageschool. That is what constitutes the problem.

At elite schools, 90 percent of science majors [got] 650 orabove on the SAT math score. About 80 percent of thewhite/Asian group are 650 or above, but only 25 percent ofthe black group have that score or better. The gaps that areillustrated in these data have not gotten any better. Theyhave, in fact, gotten a little bit worse: The gap in the SATscores between blacks and whites, which got to its smallestextent in about 1991 — 194 points — is back to 209.

The higher the standard at the institution, the more sciencethey tend to do. But the [lower-ranking schools] still do sci-ence, and your chances of becoming a scientist are better.Now, obviously, there are differences. The higher institutionshave eliteness going for them. They have prestige going forthem, and maybe getting a degree from Dartmouth when youwant to be a doctor will leave you better off in this worldeven though you’re not doing the thing you started with asyour aspiration.

Seventeen of the top 20 PhD-granting institutions for blacksin this country, are HBCUs [historically black colleges and uni-versities].

Elite institutions are very performance-oriented. They delib-erately take people at a very high level to begin with — witha few exceptions — and then they make them perform, andthey do a pretty good job of it. If you’re not ready for thefirst science course, you might as well forget it. Some of theseminority students had mostly A’s . . . enough to get to Dart-mouth or Brown or Cornell or Yale. They take their firstcourse, let’s say, in chemistry; at least 90 percent of the stu-dents in that course are bright, motivated, often pre-med,highly competitive whites and Asians. And these [minority]kids aren’t as well-prepared. They may get their first C- or Din a course like that because the grading standards are rigorous,and you have to start getting it from day one.No

PROF. RICHARD A. TAPIADIRECTOR, CENTER ON EXCELLENCE ANDEQUITY, RICE UNIVERSITY

FROM TESTIMONY BEFORE U.S. CIVIL RIGHTS COMMISSION, SEPT. 12, 2008

the nation selects leaders from graduates and faculty of U.S.universities with world-class science, technology, engineer-ing and math (STEM) research programs. If we, the under-

represented minorities, are to be an effective component inSTEM leadership, then we must have an equitable presence asstudents and faculty at the very top-level research universities.

Pedigree, unfortunately, is an incredible issue. Top researchuniversities choose faculty from PhDs produced at top researchuniversities. PhDs produced at minority-serving schools or less-prestigious schools will not become faculty at top research uni-versities. Indeed, it’s unlikely they’ll become faculty at minority-serving institutions. A student from a research school with alesser transcript is stronger than a student from a minority-serving institution with all A’s.

So are the students who come from these minority-servinginstitutions incompetent? No. There’s a level of them that areincredibly good and will succeed wherever they go. And usuallyStanford and Berkeley and Cornell will get those. Then there’sa level below that you can work with. I produced many PhDswho came from minority-serving institutions. Is there a gap intraining? Absolutely.

We do not know how to measure what we really value:Creativity. Underrepresented minorities can be quite creative.For example, the Carl Hayden High School Robotic Team —five Mexican-American students from West Phoenix — beatMIT in the final in underwater robotics. They were not starstudents, but they were incredibly creative.

Treating everyone the same is not good enough. Sink orswim has not worked and will not work. It pays heed toprivilege, not to talent. Isolation, not academics, is often theproblem. We must promote success and retention with sup-port programs. We must combat isolation through community-building and mentoring.

Ten percent of the students in public education in Texasare accepted into the University of Texas, automatically — thetop 10 percent. They could have said look, these students arenot prepared well. They’re dumped at our doorstep, let’sleave them. They didn’t. The Math Department at the Univer-sity of Texas at Austin built support programs where minori-ties are retained and succeed. It took a realization that herethey are, let’s do something with them.

Race and ethnicity should not dictate educational destiny.Our current path will lead to a permanent underclass that fol-lows racial and ethnic lines.

858 CQ Researcher

“We want an acknowledgement thatdisadvantage cannot be specifically de-termined based on looking at some racedata or gender data,” Corry says. Buttutoring, counseling and other activitiesshould be extended to all who needhelp because of their socioeconomiccircumstances, she contends.

Likewise, a projectto interest girls in sci-ence and math, for in-stance, would have toadmit boys. “In a timewhen America is los-ing its scientific ad-vantage by the second,why are you exclud-ing potential Nobelprize winners becausethey’re born with thewrong biology?” sheasks rhetorically.

Hart says thatmany tutoring andsimilar programs tai-lored to low-incomestudents in Coloradoalready welcome allcomers, regardless ofrace or ethnicity. Butshe questions why amath and science program tailored forgirls should have to change its orien-tation. Likewise, Denver’s specializedpublic schools for American Indian stu-dents would have to change their ori-entation entirely. “Class-based equal op-portunity programs are not substitutesfor outreach, training and mentoring onthe basis of race and gender,” she says.

The issue of class comes up in per-sonal terms as well. Corry portrays her-self as the product of a troubled homewho had to work her way throughcollege and graduate school. Thoughher father was a lawyer, her motherabandoned the family and wound upliving on the streets. And Corry de-picts Hart as a member of the privi-leged class, a granddaughter of formerSolicitor General Cox and a graduate

of Harvard University and Harvard LawSchool. “People like Melissa, I believe,are well-intentioned but misguided,”Corry says. “The worst thing you cando to someone without connectionsis to suggest that they can’t make itwithout preferences.”

Hart, rapping Corry for bringing uppersonal history rather than debating ideas,

adds that her father and his part of thefamily are potato farmers from Idaho.

“I am proudly the granddaughterof Archibald Cox, proud of the factthat he argued the Bakke case for theUniversity of California, and proud tobe continuing a tradition of standingup for opportunity in this country,”she says.

The Nebraska campaign, taking placein a smaller state with little history ofracial or ethnic tension and a universitywhere competition for admission isn’t anissue, has generated somewhat less heat.But as in Colorado, college-preparationand other programs of various kinds thattarget young women and American In-dians would be threatened by theamendment, says Laurel Marsh, execu-tive director of the Nebraska ACLU.

Over Their Heads?

T he U.S. Civil Rights Commission isexamining one of the most ex-

plosive issues in the affirmative actiondebate: whether students admitted totop universities due to racial preferencesare up to the academic demands they

face at those institutions.Math and the hard

sciences present the mostobvious case, affirmativeaction critics — and somesupporters — say. Thosefields are at the centerof the commission’s in-quiry because studentsfrom high schools in low-income areas — typical-ly minority students —tend to do poorly in sci-ence and math, in partbecause they require con-siderable math prepara-tion in elementary andhigh school.

Sander of UCLA, whohas been studying thetopic, testified to the com-mission that for studentsof all races who had

scored under 660 on the math SAT,only 5 percent of blacks and 3.5 per-cent of whites obtained science de-grees. But of students who scored 820or above on the SAT, 44 percent ofblacks graduated with science or engi-neering degrees. Among whites, 35 per-cent graduated with those degrees —illustrating Sander’s point that that issueis one of academic preparation, not race.

Abigail Thernstrom, the commission’svice-chair, says that most graduates ofrun-of-the-mill urban schools labor undera major handicap in pursuing math orscience degrees. “By the time they getto college they’re in bad shape in adiscipline like math, where all knowledgeis cumulative,” she says. “The collegesare inheriting a problem that, in effect,we sweep under the rug.”

AFFIRMATIVE ACTION

Continued from p. 856

TV cameramen in Lincoln, Neb., shoot boxes of signed voter petitions thatqualified a proposed initiative to be put on the ballot in Nebraska this

coming November calling for a ban on most types of affirmative action.A

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Thernstrom, a longtime affirmative ac-tion critic, bases her views both on her11 years of service on the Massachusettsstate Board of Education and on dataassembled by academics, includingSander. “Test scores do predict a lot,high school grades predict a lot,” Sandersays in an interview, disputing critics ofhis work who say students from defi-cient high schools can make up in col-lege what they missed earlier.

Testifying to the commission onSept. 12, Sander presented data show-ing that black and Hispanic high schoolgraduates tend to be more interestedthan their white counterparts in pur-suing science and math careers, butless successful in holding on to ma-jors in those fields in college. Lowerhigh school grades and test scores seemto account for as much as 75 percentof the tendency to drop out of thosefields, he says.

Sander added that a student’s pos-sibilities can’t be predicted from skincolor and that the key factor associ-ated with inadequate academic prepa-ration is socioeconomic status. “Weought to view that as good news, be-cause that means there’s no intrinsicor genetic gap,” he testified.

Rogers Elliott, an emeritus psy-chology and brain sciences professorat Dartmouth College, told the com-mission that the best option for manyblack and Hispanic students who wantto pursue science or math careers isto attend lower-rated universities.Among institutions that grant the mostPhDs to blacks, 17 of the top 20 areHBCUs, Elliott said, “and none of themis a prestige university.”

Richard Tapia, a Rice Universitymathematician, countered that con-signing minority-group students whoaren’t stars to lower-ranking univer-sities would be disastrous. Only top-tier universities, he argued, providetheir graduates with the credibilitythat allows them to assert leadership.“Research universities must be re-sponsible for providing programs

that promote success,” he said, “ratherthan be let off the hook by sayingthat minority students should go tominority-serving institutions or lessprestigious schools.”

Tapia directs such a program — oneof a handful around the country —that he says has helped Rice studentsovercome their inadequate earlierschooling. But he accepts Sander’s andElliott’s data and says students withcombined SAT scores below 800 wouldnot be capable of pursuing math orscience majors at Rice.

Tapia, the son of Mexican immigrantswho didn’t attend college, worked at amuffler factory after graduating from alow-achieving Los Angeles high school.Pushed by a co-worker to continue hiseducation, he enrolled in communitycollege and went on to UCLA, wherehe earned a doctorate. He attributes hissuccess to a big dose of self-confidence— something that many people fromhis background might not have but thatmentors can nurture.

A commission member soundedanother practical note. Ashley L. Tay-lor Jr., a Republican lawyer from Rich-mond, Va., who is black, argued thatcolleges have a moral obligation totell applicants if their SAT scores fallwithin the range of students who havea shot of completing their studies. “IfI’m outside that range, no additionalsupport is going to help me,” he said.

Sander agrees. “African-Americanstudents and any other minority oughtto know going into college the ulti-mate outcomes for students at that col-lege who have their profile.”

Tapia agreed as well. “I had a studentthat I was recruiting in San Antoniowho had a 940 SAT and was goingto Princeton. I said, ‘Do you know whatthe average at Princeton is?’ He said,“Well, my teachers told me it wasabout 950.’ I said, ‘Well, I think you’dbetter check it out.’ ”

In fact, the average combined mathand verbal SAT score of students ad-mitted to Princeton is 1442. 44

OUTLOOKEnd of the Line?

S ocial programs don’t come with animmortality guarantee. Some sup-

porters as well as critics of affirmativeaction sense that affirmative action, asthe term is generally understood, maybe nearing the end of the line.

“I expect affirmative action to die,”says Tapia. “People are tired of it. Andif we had to depend on affirmativeaction forever, then there was some-thing wrong. If you need a jump-starton your battery, and you get itjumped, fine. If you start needing iteverywhere you go, you’d better getanother battery.”

Tapia’s tone is not triumphant. Hesays the decline in public school qual-ity is evidence that “it didn’t work,and we didn’t do a good job.” But headds that the disparities between theschooling for low-income and well-offstudents is what makes affirmative ac-tion necessary. “Sure, in an ideal world,you wouldn’t have to do these things,but that’s not the world we live in.”

UCLA’s Sander, who favors reorient-ing affirmative action — in part by de-termining an academic threshold belowwhich students admitted by preferencelikely will fail — sees major change onthe horizon. For one thing, he says,quantities of data are now accessibleconcerning admission standards, gradesand other quantifiable effects of affir-mative action programs.

In addition, he says, today’s recon-figured Supreme Court likely would ruledifferently than it did on the 2003 Uni-versity of Michigan cases that representits most recent affirmative action rulings.

Justice O’Connor, who wrote themajority decision in the 5-4 ruling thatupheld the use of race in law-schooladmissions, has retired, replaced by

860 CQ Researcher

AFFIRMATIVE ACTION

conservative Justice Samuel A. Alito.“The Supreme Court as it stands nowhas a majority that’s probably readyto overrule” that decision, Sander says.A decision that turned on the newlyavailable data “could lead to a majorSupreme Court decision that could sendshockwaves through the system.”

For now, says Kahlenberg of TheCentury Foundation, affirmative actionhas already changed form in statesthat have restricted use of racial andethnic preferences. “It’s not as if uni-versities and colleges have simplythrown up their hands,” he says. “Theynow look more aggressively at eco-nomic disadvantages that students face.The bigger picture is that the Ameri-can public likes the idea of diversitybut doesn’t want to use racial prefer-ences to get there.”

Anderson of Texas A&M agrees thata vocabulary development marks theshift. “We’ve been changing affirma-tive action and quotas to diversity,” hesays. “Diversity is seen as good, andhas become part of our mainstreamculture.”

In effect, diversity has come to meanhiring and admissions policies thatfocus on bringing people of differentraces and cultures on board — peoplelike Obama, for example. “Obama’stalking about merit, and keeping thedoors open for all Americans, andstrengthening the middle class,” An-derson says.

Obama, whose father was Kenyanand whose half-sister is half-Indonesian,

also represents another facet of thechanging face of affirmative action.“Our society is becoming a lot moredemographically complicated,” saysSchmidt, of The Chronicle of HigherEducation and author of a recent bookon affirmative action in college ad-missions. “All of these racial groupsthat benefit from affirmative action asa result of immigration — they’re notgroups that have experienced oppres-sion and discrimination in the UnitedStates. And people are marrying peopleof other races and ethnicities. How doyou sort that out? Which parent countsthe most?”

All in all, Schmidt says, the prospectsfor affirmative action look dim. “In thelong term, the political trends are againstit,” he says. “I don’t see a force out therethat’s going to force the pendulum toswing the other way.”

At the same time, many intendedbeneficiaries — African-Americans whosehistory set affirmative action in motion— remain untouched by it because ofthe deficient schools they attend.

The catastrophic state of publicschools in low-income America remains— and seems likely to remain — apoint on which all sides agree. Whetheranything will be done about it is an-other story.

Top schools will continue to seekdiverse student bodies, says Colemanof Duke law school. But the publicschools continue to deteriorate. “Ihaven’t seen any effort by people whooppose affirmative action, or people

who support it, to do anything to im-prove the public school system. Weought to improve the quality of edu-cation because it’s in the national in-terest to do that.”

Notes

1 See “Transcript: Obama and Clinton De-bate,” ABC News, April 16, 2008, http://abc-news.go.com/Politics/DemocraticDebate/story?id=4670271&page=1.2 Ibid.3 Ibid.4 See “Trends in Political Values and Core At-titudes: 1987-2007,” Pew Research Center forPeople and the Press, March 22, 2007, pp. 40-41, http://people-press.org/reports/pdf/312.pdf.5 See Alemayehu Bishaw and Jessica Semega,“Income, Earnings, and Poverty Data fromthe 2007 American Community Survey,” U.S.Census Bureau, August 2008, p. 20,www.census.gov/prod/2008pubs/acs-09.pdf.6 See Peter Schmidt, Color and Money: HowRich White Kids Are Winning the War OverCollege Affirmative Action (2007), p. 47.7 See Anthony P. Carnevale and Stephen J.Rose, “Socioeconomic Status, Race/Ethnicity,and Selective College Admissions,” The Cen-tury Foundation, March 2003, pp. 26, 79,www.tcf.org/Publications/Education/carnevale_rose.pdf.8 See Christopher B. Swanson, “Who Grad-uates? Who Doesn’t? A Statistical Portrait ofHigh School Graduation, Class of 2001,”The Urban Institute, 2004, pp. v-vi, www.urban.org/UploadedPDF/410934_WhoGradu-ates.pdf.9 Quoted in Ira Katznelson, When AffirmativeAction Was White: An Untold History of RacialInequality in Twentieth-Century America (2005),p. 175.10 See Roberta W. Francis, “Reconstituting theEqual Rights Amendment: Policy Implicationsfor Sex Discrimination,” 2001, www.equal-rightsamendment.org/APSA2001.pdf.11 See Clarence Thomas, My Grandfather’sSon: A Memoir (2007), p. 126.12 Quoted in “Justice Thomas Mocks Valueof Yale Law Degree,” The Associated Press,Oct. 22, 2007, www.foxnews.com/story/0,2933,303825,00.html. See also, Coleman profile inBerger&Montague, P.C., law firm Web site,www.bergermontague.com/attorneys.cfm?type=1.

About the AuthorPeter Katel is a CQ Researcher staff writer who previ-ously reported on Haiti and Latin America for Time andNewsweek and covered the Southwest for newspapers inNew Mexico. He has received several journalism awards,including the Bartolomé Mitre Award for coverage of drugtrafficking, from the Inter-American Press Association. Heholds an A.B. in university studies from the University ofNew Mexico. His recent reports include “Oil Jitters,” “Raceand Politics” and “Rise in Counterinsurgency.”


13 See Linda Greenhouse, “Justices Back Af-firmative Action by 5 to 4, But Wider VoteBans a Racial Point System,” The New YorkTimes, June 24, 2003, p. A1.14 “Barack Obama, July 27, 2008, Unity 08,High Def, Part II,” www.youtube.com/watch?v=XIoRzNVTyH4&eurl=http://video.google.com/videosearch?q=obama%20UNITY&ie=UTF-8&oe=utf-8&rls=org.mozilla:en-US:official&c.UNITY is a coalition of the Asian-AmericanJournalists Association, the National Associa-tion of Black Journalists, the National Asso-ciation of Hispanic Journalists and the Na-tive American Journalists Association,www.unityjournalists.org.15 See “Trends in Political Values . . .,” op.cit., pp. 40-41.16 See http://abcnews.go.com/Politics/Demo-craticDebate/story?id=4670271.17 See Jonathan Kaufman, “Fair Enough?” TheWall Street Journal, June 14, 2008.18 See Christine MacDonald, “Ban lost in col-lege counties,” Detroit News, Nov. 9, 2006,p. A16; and “1996 General Election Returnsfor Proposition 209,” California Secretary ofState, Dec. 18, 1996, http://vote96.sos.ca.gov/Vote96/html/vote/prop/prop-209.961218083528.html.19 See Sue Anne Pressley, “Florida Plan Aimsto End Race-Based Preferences,” The Wash-ington Post, Nov. 11, 1999, p. A15.20 See Walter Alarkon, “Affirmative actionemerges as wedge issue in election,” TheHill, March 11, 2008, http://thehill.com/cam-paign-2008/affirmative-action-emerges-as-wedge-issue-in-election-2008-03-11.html.21 Ibid., p. viii.22 Catherine L. Horn and Stella M. Flores,“Percent Plans in College Admissions: A Com-parative Analysis of Three States’ Experiences,”The Civil Rights Project, Harvard University,February 2003, pp. 30-31, http://eric.ed.gov/ER-ICDocs/data/ericdocs2sql/content_storage_01/0000019b/80/1a/b7/9f.pdf.23 See Carnevale and Rose, op. cit., pp. 10-11.24 Ibid.25 Quoted in Terry H. Anderson, The Pur-suit of Fairness: A History of Affirmative Ac-tion (2004), p. 76. Unless otherwise indi-cated, material in this subsection is drawnfrom this book.26 For background, see the following Edito-rial Research Reports: Richard L. Worsnop,“Racism in America,” May 13, 1964; SandraStencel, “Reverse Discrimination,” Aug. 6, 1976;K. P. Maize and Sandra Stencel, “AffirmativeAction Under Attack,” March 30, 1979; and

Marc Leepson, “Affirmative Action Reconsid-ered,” July 31, 1981, all available in CQ Re-searcher Plus Archive.27 Quoted in Anderson, op. cit., p. 125.For more background, see Richard L.Worsnop, “Racial Discrimination in CraftUnions,” Editorial Research Reports, Nov.26, 1969, available in CQ Researcher PlusArchive.28 Griggs v. Duke Power, 401 U.S. 424 (1971),http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=401&invol=424. For back-ground, see Mary H. Cooper, “Racial Quo-tas,” CQ Researcher, May 17, 1991, pp. 277-200; and Kenneth Jost, “RethinkingAffirmative Action,” CQ Researcher, April 28,1995, pp. 269-392.29 Ibid.30 See University of California Regents v. Bakke,438 U.S. 265 (1978), http://caselaw.lp.find-law.com/scripts/getcase.pl?court=US&vol=438&invol=265.31 See United Steelworkers of America, AFL-CIO-CLC v. Weber, et al., 443 U.S. 193 (1979),http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=443&invol=193; and Fullilovev. Klutznick, 448 U.S. 448 (1980), www.law.cornell.edu/supct/html/historics/USSC_CR_0448_0448_ZS.html.

32 Unless otherwise indicated, this subsectionis drawn from Anderson, op. cit; and Jost,op. cit.33 For background, see Cooper, op. cit.34 Anderson, op. cit., p. 186.35 Ibid., p. 206.36 Quoted in ibid., p. 233. Unless otherwiseindicated this subsection is drawn from An-derson, op. cit.37 Ibid., p. 242.38 Ibid., p. 244.39 For background, see Kenneth Jost, “Racein America,” CQ Researcher, July 11, 2003,pp. 593-624.40 Quoted in Greenhouse, op. cit.41 “Controversial Bake Sale to Go On at CU,College Republicans Protesting Affirmative Ac-tion,” 7 News, Feb. 10, 2004, www.theden-verchannel.com/news/2837956/detail.html.42 Quoted in Kavita Kumar, “Affirmative ac-tion critic vows he’ll try again,” St. Louis Post-Dispatch, May 6, 2008, p. D1.43 “Amendment 46: Formerly Proposed Initia-tive 2007-2008 #31,” Colorado Secretary of State,undated, www.elections.colorado.gov/DDe-fault.aspx?tid=1036.44 College data, undated, www.collegedata.com/cs/data/college/college_pg01_tmpl.jhtml?schoolId=111.

FOR MORE INFORMATIONAmerican Association for Affirmative Action, 888 16th St., N.W., Suite 800,Washington, DC 20006; (202) 349-9855; www.affirmativeaction.org. Representshuman resources professionals in the field.

American Civil Liberties Union, 125 Broad St., 18th Floor, New York, NY 10004;www.aclu.org/racialjustice/aa/index.html. The organization’s Racial Justice Programorganizes legal and voter support for affirmative action programs.

American Civil Rights Institute, P.O. Box 188350, Sacramento, CA 95818; (916)444-2278; www.acri.org/index.html. Organizes ballot initiatives to prohibit affirmativeaction programs based on race and ethnicity preferences.

Diversity Web, Association of American Colleges and Universities, 1818 R St.,N.W., Washington, DC 20009; www.diversityweb.org. Publishes news and studiesconcerning affirmative action and related issues.

www.jessicacorry.com. A Web site featuring writings by Jessica Peck Corry, directorof the Colorado campaign for a racial preferences ban.

Project SEAPHE (Scale and Effects of Admissions Preferences in Higher Edu-cation), UCLA School of Law, Box 951476, Los Angeles, CA 90095; (310) 267-4576;www.seaphe.org. Analyzes data on the effects of racial and other preferences.

U.S. Commission on Civil Rights, 624 Ninth St., N.W., Washington, DC 20425;(202) 376-7700; www.usccr.gov. Studies and reports on civil rights issues andimplements civil rights laws.

FOR MORE INFORMATION

862 CQ Researcher

Books

Anderson, Terry H., The Pursuit of Fairness: A Historyof Affirmative Action, Oxford University Press, 2004.A Texas A&M historian tells the complicated story of affir-

mative action and the struggles surrounding it.

Kahlenberg, Richard D., ed., America’s Untapped Resource:Low-Income Students in Higher Education, The CenturyFoundation Press, 2004.A liberal scholar compiles detailed studies that add up to

a case for replacing race- and ethnic-based affirmative ac-tion with a system based on students’ socioeconomic status.

Katznelson, Ira, When Affirmative Action Was White: AnUntold History of Racial Inequality in Twentieth-CenturyAmerica, Norton, 2005.A Columbia University historian and political scientist argues

that affirmative action — favoring whites — evolved as a wayof excluding Southern blacks from federal social benefits.

Schmidt, Peter, Color and Money: How Rich White Kidsare Winning the War Over College Affirmative Action,Palgrave Macmillan, 2007.An editor at The Chronicle of Higher Education explores

the realities of race, class and college admissions.

Sowell, Thomas, Affirmative Action Around the World:An Empirical Study, Yale University Press, 2004.A prominent black conservative and critic of affirmative action

dissects the doctrine and practice and its similarities to initiativesin the developing world, of which few Americans are aware.

Articles

Babington, Charles, “Might Obama’s success undercut affir-mative action,” The Associated Press, June 28, 2008, www.us-atoday.com/news/politics/2008-06-28-3426171631_x.htm.In a piece that prompted a debate question to presidential

candidate Barack Obama, a reporter examines a possibly para-doxical consequence of the 2008 presidential campaign.

Jacobs, Tom, “Affirmative Action: Shifting Attitudes, Sur-prising Results,” Miller-McCune, June 20, 2008, www.miller-mccune.com/article/447.A new magazine specializing in social issues surveys the long-

running debate over university admissions. (Miller-McCune ispublished by SAGE Publications, parent company of CQ Press.)

Leonhardt, David, “The New Affirmative Action,” NewYork Times Magazine, Sept. 30, 2007, p. 76.A journalist specializing in economic and social policy ex-

plores UCLA’s efforts to retool its admissions procedures.

Liptak, Adam, “Lawyers Debate Why Blacks Lag At MajorFirms,” The New York Times, Nov. 29, 2006, p. A1.A law correspondent airs a tough debate over affirmative

action’s success, or lack of it, at big law firms.

Matthews, Adam, “The Fixer,” Good Magazine, Aug. 14,2008, www.goodmagazine.com/section/Features/the_fixer.A new Web-based publication for the hip and socially conscious

examines the career of black businessman and affirmative-actioncritic Ward Connerly.

Mehta, Seema, “UCLA accused of illegal admissions prac-tices,” Los Angeles Times, Aug. 30, 2008, www.latimes.com/news/local/la-me-ucla30-2008aug30,0,6489043.story.Mehta examines the latest conflict surrounding the top-tier

university’s retailored admissions procedures.

Reports and Studies

Coleman, James E. Jr. and Mitu Gulati, “A Response toProfessor Sander: Is It Really All About the Grades?”North Carolina Law Review, 2006, pp. 1823-1829.Two lawyers, one of them a black who was a partner at

a major firm, criticize Sander’s conclusions, arguing he overem-phasizes academic deficiencies.

Horn, Catherine L. and Stella M. Flores, “Percent Plans inCollege Admissions: A Comparative Analysis of Three States’Experiences,” The Civil Rights Project, Harvard University,February 2003.Educational policy experts with a pro-affirmative action

perspective dig into the details of three states’ alternativesto traditional affirmative action.

Prager, Devah, “The Mark of a Criminal Record,” Amer-ican Journal of Sociology, March 2003, pp. 937-975.White people with criminal records have a better chance

at entry-level jobs than black applicants with clean records,an academic’s field research finds.

Sander, Richard H., “The Racial Paradox of the CorporateLaw Firm,” North Carolina Law Review, 2006, pp. 1755-1822.A much-discussed article shows that a disproportionate

number of black lawyers from top schools leave major lawfirms before becoming partners.

Swanson, Christopher B., “Who Graduates? Who Doesn’t?A Statistical Portrait of Public High School Graduation, Classof 2001,” The Urban Institute, 2004, www.urban.org/publi-cations/410934.html.A centrist think tank reveals in devastating detail the disparity

in high schools between races and classes.

Selected Sources

Bibliography


Alternatives

“Social-Class Affirmative Action May Bring DesirableResults,” Ann Arbor News (Michigan), March 18, 2008.Public universities in California and Washington state are

taking social class into account — as opposed to race.

“Texas’ 10% Admission Could Teach Colleges a Thingor Two,” USA Today, March 28, 2008, p. 8A.University of Texas President William Powers complains

the “10-percent rule” has come to dominate admissions.

Fischer, Karin, “Texas Senate Passes Percent-Plan Limit,”Chronicle of Philanthropy, May 18, 2007, p. 21.In an effort to admit more minority students, the Texas

Senate has approved a plan that requires state universitiesto give no more than 60 percent of their freshman-class slotsto top students.

Equality

Riley, Rochelle, “Far From Equal Chances,” Detroit FreePress, Nov. 12, 2006, p. 3.Affirmative action should be less about race and more

about promoting economic equality.

Shaw, Timothy F., “Affirmative Action Is Vital as a Cor-rective,” Omaha World-Herald, March 6, 2008, p. 7B.Affirmative action does not give advantages to unqualified

individuals but rather attempts to offset discriminatory prac-tices that continue structural inequalities in society.

Young, Cathy, “A Well-Meaning End to Discrimination,”The Boston Globe, Dec. 11, 2006, p. A12.Affirmative action began as a system to ensure that minority

candidates and women got an equal chance to compete, butnow it is largely viewed as well-meaning discrimination.

Majority Students

Chong, Jane, “Socioeconomics: The Complex Cost ofColor,” The Chronicle (Duke University), Nov. 29, 2006.Poor white students can easily be displaced by affluent

black students in the current affirmative action system.

Jones, Alec E., “Harvard Prof Finds Similarity in Struggleof Asians, Blacks in U.S.,” Harvard Crimson, April 18, 2008.Asians would benefit from an affirmative action system that

takes social class into account.

Schmidt, Peter, “Asians, Not Whites, Hurt Most by Race-Conscious Admissions,” USA Today, Feb. 20, 2008, p. 12A.Asian-Americans — not whites — are held to a higher

standard at top colleges that use affirmative action.

Vaznis, James, “GOP Group at BU Offers Aid to Whites,”The Boston Globe, Nov. 22, 2006, p. B1.Boston University’s College Republicans have started a schol-

arship exclusively for white students in order to spark debateover race-based programs.

Opposition

Hudson, Stacy, “Blacks Should Look to Themselves toCreate Success, Speaker Says,” Arkansas Democrat-Gazette, April 12, 2007.Ward Connerly, an African-American businessman from Cali-

fornia, says blacks should take responsibility for their ownsuccess rather than relying on race-based discrimination poli-cies such as affirmative action.

Shamus, Kristen Jordan, “Issue of Fairness,” Detroit FreePress, Feb. 16, 2007, p. 1.A rejected applicant to the University of Michigan Law

School says the issue of fairness is more important than theneed for affirmative action.

Torkelson, Jean, “Many Gains, But Many Dreams StillUnfulfilled,” Rocky Mountain News (Colorado), Jan. 21,2008, p. 6.If affirmative action policies are met by a resistance to

change, then even laws with the best intentions can beproven inadequate.

Williams, Joseph, and Matt Negrin, “Affirmative Action FoesPoint to Obama,” The Boston Globe, March 18, 2008, p. A1.Opponents of affirmative action say Barack Obama’s his-

toric run for the presidency serves as proof that race-basedremedies for past discrimination are no longer necessary.

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AUG. 5, 2010 UPDATE

T he Supreme Court’s June 29,2009, ruling in favor of whitefirefighters in New Haven,

Conn., was perhaps the key event inaffirmative action over the past twoyears. The firefighters had challengedthe city’s decision to discard a com-petency test for determining promo-tions after black firefighters taking thetest had underperformed. The 5-4 de-cision in Ricci v. DeStefano prompt-ed Fordham University law professorSheila Foster to declare that it “will changethe landscape of civil rights law.” 45

The court majority ruled against NewHaven’s action to discard the perfor-mance results. It did, however, say anemployer can invoke fear of litigation— suits that might be brought by ei-ther the white or the black firefightersciting disparate impact — as a defenseagainst the white firefighters’ charge thatdiscarding the competency test was un-lawful discrimination. But the lead opin-ion, written by Justice Anthony Kennedy,said such a defense is available onlywhere the employer has “strong . . .evidence” that it would be held liable,

which the New Haven Fire Depart-ment did not have. 46

In a dissent, Justice Ruth BaderGinsburg wrote that the white fire-fighters “understandably attract thiscourt’s sympathy. But they had novested right to promotion. Nor haveother persons received promotion inpreference to them.” 47

Notably, the ruling overturnedan earlier appeals court ruling signedby then-federal Judge Sonia Sotomayorin the midst of the confirmationprocess for her elevation to the U.S.Supreme Court. Opinion polls justbefore the ruling showed some pub-lic skepticism toward affirmative ac-tion. American voters, by 55-36 per-cent, said that affirmative action shouldbe abolished, and 71 percent dis-agreed with Sotomayor’s ruling in theNew Haven firefighters’ case, ac-cording to a June 2009 QuinnipiacUniversity poll.

Poll Results DifferBut The Associated Press, using dif-

ferent phrasing in poll questions, gota different result: 56 percent of Amer-icans favor affirmative action, it re-ported, with 36 percent opposed. An

NBC News-Wall Street Journal pollshowed 63 percent agreeing that “af-firmative action programs are still need-ed to counteract the effects of dis-crimination against minorities, and area good idea as long as there are norigid quotas.”The election of the first African-

American president focused addition-al attention on Americans’ attitudesabout using affirmative action as a toolto ease racial disparities. PresidentBarack Obama displayed his approachto such change in his Supreme Court

Affirmative ActionHere are key events, legislation and court rulings since

publication of the CQ Researcher report by Peter Katel,

“Affirmative Action,” Oct. 17, 2008.

As the nation’s first African-American president,Barack Obama has taken assertive steps to supportaffirmative action, including his appointment of

Arne Duncan as Secretary of Education.

AFP/Getty Images/Jewel Samad

PUBLISHED BY CQ PRESS, AN IMPRINT OF SAGE PUBLICATIONS, INC. WWW.CQPRESS.COM

appointments of Sotomayor and ElenaKagan, in the naming of an assertivechief of civil rights at the EducationDepartment, and his administration’sswitch away from Bush-era litigationpriorities in the area of race-consciouslegal remedies.Congratulating Obama for his 2008

victory, ReNee Dunman, president ofthe Washington-based American As-sociation for Affirmative Action, said,“Where there is inequality and ex-clusion, affirmative action remains es-sential in promoting equal opportu-nity in the workplace, higher educationand contracting.” She went on to blastwhat she called the “scorched-earthcampaign to end equal opportunityin America” waged in several statesby longtime affirmative action criticWard Connerly. 48

Connerly’s Sacramento-basedAmerican Civil Rights Institute contin-ued its efforts to enact state bans onrace-conscious selection methods inemployment and college admissions.In November 2008, voters in Coloradonarrowly rejected a ballot initiativeto that effect, and proposed banswere kept off the ballots by oppo-nents in Arizona, Missouri and Ok-lahoma. That left Connerly’s groupwith one victory, in Nebraska, to addto existing bans in California, Michi-gan and Washington State.

Obama Criticized“Obama is hostile to my effort to

end race-based preferences,” Connerlysaid in a recent interview, recalling thatObama as a presidential candidate “men-tioned me by name and called my ef-forts ‘divisive.’ That is what you say ifyou can’t disagree on the merits of anissue.” Connerly said Obama will relyon the “disparate-impact theory to argueipso facto that if minorities” are shownto be in fewer numbers in universitiesand public employment, “then that isthe same as discrimination, forgettingthat the level of preparation is not whereit needs to be.”

A key player in Obama’s handlingof affirmative action is Education Sec-retary Arne Duncan. In March 2010he journeyed to Selma, Ala., site of anhistoric civil rights march in 1965, andannounced that his department waslaunching new desegregation-compli-ance investigations around the coun-try. He also said the Education De-partment’s Office for Civil Rights “hasnot been as vigilant as it should havebeen” in confronting discriminationover the past 10 years. 49

On April 15, 2010, the Duncan-appointed assistant Education secretaryfor civil rights, Russlynn H. Ali, told TheChronicle of Higher Education she sawa more active civil rights office in thefuture. When she first arrived on thejob, she said, “what we found [were]some tireless civil-rights pioneers thatare hungry and eager, in their words,‘to do civil rights again.’ ” 50

The government’s muscular ap-proach to litigation reflects a new em-phasis on civil rights. On March 12,2010, the Obama administration’s de-partments of Education and Justice to-gether filed a friend-of-the-court briefon behalf of the University of Texasat Austin, which is defending its race-conscious methods “to achieve theeducational benefits of diversity.” 51

By contrast, George W. Bush ad-ministration policy sided with theSupreme Court’s 2003 decision in Gratzv. Bollinger striking down a Universityof Michigan law school affirmative ac-tion plan as too mechanistic. The cur-rent Texas litigation was brought bywhite students Abigail Noel Fisher andRachel Multer Michalewicz, who saidthe denial of their applications foradmission as undergraduates violatedthe 14th Amendment’s Equal Protec-tion Clause.The university permits the use of

race as one factor in an index in ap-plying efforts to use “top 10 percent”admission plans based on a 1996Texas law that guarantees admissionto state universities to all high-school

seniors in the top 10 percent of theirclass. After that law was implement-ed, minority representation at the Uni-versity of Texas dropped sharply. Thecase is pending in the Fifth U.S. Cir-cuit Court of Appeals.Universities and think tanks, mean-

while, published new studies on theimpact of race-conscious methodsand efforts at diversity in the work-place and on campus. According toa study by Columbia Law SchoolProfessor Conrad Johnson, from1993 to 2008 the percentage of blackand Mexican-American law studentsnationwide fell, despite the openingof 3,000 new places and clear im-provements in the aggregate LawSchool Admission Test scores of thetwo groups. 52

Research Claims ChallengedThe study’s results were challenged

by scholars organized at the UCLA LawSchool under the banner of ProjectSEAPHE (Scale and Effects of Admis-sions Preferences in Higher Educa-tion). In a Feb. 16, 2010, critique, itsaid the claims by the researchers werenot borne out by the data. “Using thesame reference period as the article,(1993 to 2008), accurate statisticsshow that absolute numbers of blackmatriculants are up, and Hispanic ma-triculants are way up,” SEAPHE wrote.“Meanwhile, improvements in the av-erage credentials of minority law schoolapplicants have been trivial or non-existent over this same period.” 53

In preparation for elections in fall2010, friends and foes of affirmativeaction studied lessons from the 2008victory for the affirmative action banin Nebraska and the defeat of the onein Colorado. Some 58 percent oflargely white Nebraska voters backedthe ban, even though the Universityof Nebraska Board of Regents hadopposed it. Roger Clegg, president ofthe Center for Equal Opportunity,which opposes consideration of racein admissions, said that part of the

AFFIRMATIVE ACTION

legal defense of considering race in-volves public colleges saying that theyhave no alternative ways to promotediversity. As more states eliminate theconsideration of race — and many ofthem find ways to still have diverseclasses — how plausible is it to makethat claim? he asked. 54

In Colorado, opinion polls showedvoters initially appeared to favor theproposal to amend the state constitu-tion to ban preferential treatment toindividuals based on race, color, sex,

ethnicity or national origin. But adoor-to-door campaign against it helpedturn the tide (final tally 51 percent to49 percent), and opponents, such asDemocratic Gov. Bill Ritter, called themeasure deceptive, saying it wouldjeopardize outreach programs for mi-nority children. 55

The chief organizer of Colorado’sproposed ban, Jessica Corry, said vot-ers were confused by too many itemson the ballot and that the ban wouldhave passed any other year.

Those seeking to outlaw affirmativeaction were cheered when the Arizonalegislature in June 2009 approved aplan to put a proposed ban on theNovember 2010 ballot. It was the firsttime a state legislature had enacted aballot referendum as opposed to citi-zens’ groups gathering signatures, notedConnerly. His group has hopes forUtah taking up a ban next year.Over the long term, Connerly says,

he is working to get rid of race-basedclassifications as legal categories, such

Chronology2008Nov. 4 — Colorado voters rejectballot initiative to enact statebans on race-conscious selectionmethods in employment andcollege admissions.

•

2009June 29 — Supreme Courtfavors white firefighters inNew Haven, Conn., reverse-discrimination case; 5-4 rulinglimits government employers’ability to favor minorities inhiring, promotion to avoiddiscrimination claims.

•

2010March 8 — Education SecretaryArne Duncan announces inSelma, Ala., that his department

is launching new desegregationcompliance investigationsaround the country.

Nov. 2 — Arizona votersapprove measure to banaffirmative action in publiceducation, public employment,government contracting.

•

2011Jan. 18 — University of Texasadmissions policy upheld byfederal appeals court; rehearingdenied ( June 17).

July 1 — Michigan ban onaffirmative action struck downby federal appeals court.

July 28 — White firefighters inNew Haven, Conn., agree toaccept $2 million in damages inreverse-discrimination suit afterSupreme Court victory.

Sept. 30 — Jefferson County(Louisville), Ky., pupil

assignment plan struck down bystate court; school districtappeals to state high court;arguments heard April 18, 2012.

Dec. 2 — Obama administrationlists steps for colleges,universities to increase diversity.

•

2012Feb. 21 — Supreme Courtagrees to hear University ofTexas case; arguments in fall2012, decision by June 2013.

April 2 — California ban onaffirmative action upheld byfederal court.

June 11 — Supreme Courtallows black New Havenfirefighter to pursuediscrimination claim against cityover scoring of promotion test.

Nov. 6 — Oklahoma to vote onaffirmative action ban.

as those on the 2010 census forms,by encouraging Americans to declineto fill out such information.

— Charles S. Clark

JUNE 19, 2012 UPDATE

T he Supreme Court is set to re-examine the contentious issueof whether colleges and uni-

versities can consider an applicant’srace in a selective admission process.The justices will hear arguments in

fall 2012 in a challenge to admissionspolicies at the University of Texas’ flag-ship campus in Austin brought by anunsuccessful white applicant. NancyFisher contends that the school’s useof race as a factor in the admissionsprocess violated her constitutional rightsby disadvantaging her in comparisonto minority applicants.The case, Fisher v. University of Texas,

will mark the first time the court underChief Justice John G. Roberts Jr. revis-its the issue since the 2003 decision inGrutter v. University of Michigan allowed

universities to make limited use of racialpreferences in admissions. 56

The Roberts court’s other race-related rulings on K-12 pupil-assignmentsystems and government hiring and

promotion policies cheered critics ofracial preferences and dismayed tradi-tional civil rights groups. Roberts andJustice Samuel A. Alito Jr., both ap-pointed by President George W. Bush,cast pivotal votes in the 5-4 rulings.Advocates and experts on both sidesof the affirmative action debate ex-pect the Texas case also to be close-ly divided, with Justice Anthony M.Kennedy viewed as likely to hold thedecisive vote.Under President Obama, the ad-

ministration has cheered traditional civilrights groups by endorsing steps topromote racial diversity in K-12 andhigher education and challenging useof standardized tests and other em-ployment practices that may limit hir-ing of minorities. But critics of race-based policies say their views areadvancing in lower-court rulings, localschool board decisions and two new

statewide bans on affirmative actionin public education, public employ-ment and government contracting.

College AdmissionsThe Texas case involves a challenge

to changes adopted by the University ofTexas Board of Regents after Grutter forthe entering class of 2005 that allowedrace to be considered as one factorin an applicant’s Personal AchievementIndex (PAI). Other factors include anapplicant’s essays, leadership experi-ence and extracurricular activities.Applicants continued to be qualifiedfor automatic admission to the flag-ship Austin campus if they graduat-ed in the top 10 percent of their highschool class.Fisher, who failed to qualify under

the top-10 percent rule, was deniedadmission to the Austin campus forthe entering class of 2008. She con-tended that the rejection violated herright to equal protection because shehad academic credentials superior tothose of minority applicants who wereadmitted. The university counteredthat its admissions process conformedto the limited use of race allowedunder Grutter and had resulted in amarked increase in African-Americanstudents needed for racial diversity.A three-judge panel of the Fifth U.S.

Circuit Court of Appeals upheld theadmissions policies in a lengthy opin-ion on Jan. 18, 2011. “UT undoubted-ly has a compelling interest in obtain-ing the educational benefits of diversity,”Judge Patrick E. Higginbotham wrotefor the court, “and its reasons for im-plementing race-conscious admissions. . . mirror those approved by theSupreme Court in Grutter.” Five monthslater, the full court voted 7-5 againstrehearing the case, but four of thedissenters joined an opinion by JudgeEdith Jones that said the ruling went be-yond Grutter and called on the SupremeCourt to review the decision. 57

The high court agreed to review thedecision on Feb. 21, setting the stage

AFFIRMATIVE ACTION

Justice Samuel A. Alito Jr. signs his oath of office card in the justices’ conferenceroom on Feb. 16, 2006, as Chief Justice John G. Roberts Jr. looks on. Roberts andAlito, both appointed by President George W. Bush, cast pivotal votes in two,closely divided affirmative action-related decisions in 2007 and 2009 that

cheered critics of racial preferences but dismayed traditional civil rights groups.

Getty Images/Supreme Court Pool/Ken Heinen

for arguments likely in October or No-vember. Fisher, who went on to grad-uate from Louisiana State University inJune 2012, said in a statement that shehoped the court would decide that fu-ture applicants “will be allowed to com-pete for admission without their raceor ethnicity being a factor.” UT-AustinPresident William Powers countered thatthe university needs “to weigh a mul-titude of factors when making admis-sions decisions about the balance ofstudents who will make up each en-tering class.” 58

Meanwhile, two federal appeals courtshave differed on the validity of statewideballot measures banning racial prefer-ences in university admissions as wellas employment and government con-tracting. A Michigan measure approvedby voters in 2006 was struck down bythe Sixth U.S. Circuit Court of Appealsin July 2011. 59 In April 2012, howev-er, the Ninth U.S. Circuit Court of Ap-peals reaffirmed an earlier decision up-holding California’s similar measureadopted by voters in 1996. 60 In relat-ed developments, similar measures wereapproved by Arizona voters in Novem-ber 2010 and by the New Hampshirelegislature in 2011. 61 Oklahoma voterswill decide on a similar ballot measureon Nov. 6.For its part, the Obama adminis-

tration issued companion policy memosin December 2011 setting out stepsthat public schools, colleges and uni-versities can take to promote racial di-versity. The memos, issued jointly bythe Education and Justice departments,differed from Bush administration di-rectives that cautioned against race-conscious pupil assignment or admis-sions policies. 62

The Texas case will be heard byonly eight justices. Justice Elena Kaganrecused herself; she was U.S. solicitorgeneral when the government filed abrief supporting the university beforethe Fifth Circuit. A 4-4 vote would af-firm the Fifth Circuit’s decision, thusleaving the university’s policy in place.

Public SchoolsLocal school systems are also eval-

uating pupil enrollment policies inlight of the Roberts court’s 2007 deci-sion that generally prohibits the useof race as a determinative factor in as-signing individual students to schools.The 5-4 ruling in Parents Involved inCommunity Schools v. Seattle School Dis-trict No. 1 struck down pupil-assignmentpolicies in Seattle and Jefferson Coun-ty, Ky., which includes Louisville. 63

In the main opinion, Roberts ap-peared to condemn any use of race inpupil assignments or in other govern-ment policies. “The way to stop dis-crimination on the basis of race,” Robertswrote, “is to stop discriminating on thebasis of race.” In a pivotal concurringopinion, however, Kennedy called di-versity a “compelling interest” for schoolsystems and listed permissible “race-conscious mechanisms,” including re-drawing attendance zones and “strate-gic” site selection, to further the goal.The Seattle school board had al-

ready suspended the use of its so-called racial tie breaker for pupil as-signments during the litigation. Today,school spokeswoman Teresa Wippelsays the system uses a neighborhoodassignment system. “We don’t base iton race at all anymore,” Wippel says.In Louisville, the school system is

now in court defending the pupil-assignment system adopted after thecourt ruling. An intermediate state courtof appeal ruled in October 2011 thatthe plan violated a state law allowingparents to enroll their children in theschool closest to their home. In argu-ments in April on the school system’sappeal, however, justices of the Ken-tucky Court of Appeal, the state’s high-est court, were reported to appear in-clined toward upholding the policy. 64

The Supreme Court’s decision ap-pears to have moved school systemsaway from explicit use of race in pupilassignments. Controversies continue toflare, however. The Wake County, N.C.,school system, which includes the state

capital of Raleigh, had an income-based plan for promoting diversity inplace for several years until it wasscrapped by a newly elected, majori-ty Republican school board in 2010;civil rights groups protested the deci-sion. 65 A suit currently under way inNashville, Tenn., challenges a 2009 re-districting plan that African-Americanfamilies allege zoned black childrenaway from higher-achieving schools inpredominantly white neighborhoods;the suit also seeks to bar the startupof new charter schools that are racial-ly isolated. 66

Employment, ContractingThe court’s ruling in the New

Haven firefighters case is creating prob-lems for government personnel ad-ministrators and lawyers in determin-ing what steps if any can be taken toavoid charges of discriminating againstminorities without risking reverse-discrimination claims by white em-ployees or applicants. “It’s damned ifyou do and damned if you don’t,” saysRoger Clegg, president of the Centerfor Equal Opportunity, a Washingtonarea-based advocacy group that op-poses racial preferences.The subsequent developments in

the New Haven case illustrate theproblem. The city agreed in July 2011to pay $2 million in damages to theplaintiffs — all of them white, includingone Hispanic — who had been de-nied promotions. The city also was topay $3 million in attorneys’ fees andcourt costs. 67

Meanwhile, however, some blackfirefighters were continuing to chal-lenge the test-scoring system used indetermining promotion as racially bi-ased against minorities. A federal dis-trict court judge threw out the suit,but the Second U.S. Circuit Court ofAppeals ruled in August 2011 that oneof the plaintiffs could proceed withhis suit. The appeals court said thehigh court’s decision did not preventMichael Briscoe from trying to prove

that the city’s decision to give greaterweight to the written instead of theoral portion of the promotion examhad a “disparate impact” on minorityapplicants in violation of federal civilrights law. 68

The Obama administration has been“aggressive,” according to Clegg, in usingdisparate-impact theories in civil rightslitigation in employment, housing andlending. As one example, the JusticeDepartment filed a suit on April 23,2012, against the Jacksonville, Fla., Fireand Rescue Department challenging theuse of a written promotion exam forsupervisory positions as discriminatoryagainst minority firefighters. 69

Minority preferences in governmentcontracting also appear to be draw-ing more critical scrutiny from courts,both federal and state. In one im-portant case, the U.S. Court of Ap-peals for the Federal Circuit in 2008struck down a Defense Departmentprogram that gave preferences to mi-nority-owned contractors. The courtsaid the program was unconstitution-al without any evidence that it wasneeded to remedy past discriminationby the Pentagon. 70

— Kenneth Jost

Notes45 Adam Liptak, “Supreme Court Finds BiasAgainst White Firefighters,” The New York Times,June 30, 2009.46 Michael C. Dorf, “The Supreme Court De-cides the New Haven Firefighter Case,” July 1,2009, Findlaw, http://writ.news.findlaw.com/dorf/20090701.html.47 Edmund H. Mahony and Josh Kovner, “U.S.Supreme Court Rules in Favor of New EnglandFirefighters.” Hartford Courant, June 30, 2009.48 Press release, Nov. 30, 2008, www.affirmativeaction.org/news.html.49 Paul Basken, “Education DepartmentPromises Push on Civil-Rights Enforcement,” TheChronicle of Higher Education, March 8, 2010.50 Libby Sander and Peter Schmidt, “SteppingUp the Pace at the Office of Civil Rights,” The

Chronicle of Higher Education, April 15, 2010.51 See the joint brief at www.justice.gov/crt/briefs/fisher_appellee_brief.pdf.52 Tamar Lewin, “Law School Admissions LagAmong Minorities,” The New York Times, Jan. 6,2010.53 See SEAPHE.org.54 Scott Jaschik, “Nebraska Bars Use of Racein Admissions,” Inside Higher Ed, Nov. 5, 2008,www.insidehighered.com/news/2008/11/05/affirm.55 Colleen Slevin, “Colorado voters rejectaffirmative action ban,” Colorado Gazette,Nov. 7, 2008.56 Materials on the case can be found onSCOTUSBlog, www.scotusblog.com/case-files/cases/fisher-v-university-of-texas-at-austin/?wpmp_switcher=desktop.57 See Fisher v. University of Texas, 631 F.3d213 (5th Cir., 2011), www.ca5.uscourts.gov/opinions%5Cpub%5C09/09-50822-CV0.wpd.pdf(as revised Feb. 1, 2011). The denial of re-hearing is found at www.ca5.uscourts.gov/opinions%5Cpub%5C09/09-50822-CV1.wpd.pdf.For coverage, see articles by Ralph K. M.Haurwit: “UT admission policy upheld,” AustinAmerican-Statesman, Jan. 19, 2011; “Courtwon’t review UT admissions guidelines,”ibid., June 22, 2011.58 Quoted in Monica Rhor, “Top court to takeup UT policy on race,” The Houston Chronicle,Feb. 22, 2012, p. A1. See also Adam Liptak,“Justices Take Up Race as a Factor in CollegeEntry,” The New York Times, Feb. 22, 2012,p. A1.59 The decision is Coalition to Defend Affir-mative Action v. University of Michigan (6thCir., July 1, 2011), www.ca6.uscourts.gov/opinions.pdf/11a0174p-06.pdf. See DavidAshenfelter and Dawson Bell, “Michigan banon race in college admissions is illegal,” De-troit Free Press, July 1, 2011; Tamar Lewin,“Michigan Rule on Admission to UniversityIs Overturned,” The New York Times, July 2,2011, p. A10.60 The decision is Coalition to Defend Affir-mative Action v. Brown (9th Cir., April 2, 2012),www.ca9.uscourts.gov/datastore/opinions/2012/04/02/11-15100.pdf. See Carol J. Williams,“Racial policy ban is upheld,” Los Angeles Times,p. AA4.61 See “Arizona approves anti-affirmative ac-tion measure,” The Associated Press, Nov. 2,2010; Peter Schmidt, “New Hampshire EndsAffirmative-Action Preferences at Colleges,” TheChronicle of Higher Education, Jan. 4, 2012.

62 See U.S. Departments of Education, Justice,“Guidance on the Voluntary Use of Race toAchieve Diversity and Avoid Racial Isolationin Elementary and Secondary Schools,” www2.ed.gov/about/offices/list/ocr/docs/guidance-ese-201111.html; “Guidance on the VoluntaryUse of Race to Achieve Diversity in Post-secondary Education,” www.justice.gov/crt/about/edu/documents/guidancepost.pdf. Theundated documents were released on Dec. 1,2011.63 The citation is 551 U.S. 701 (2007). Forcoverage of background and ruling, see Ken-neth Jost, Supreme Court Yearbook 2006-2007.64 See articles by Chris Kenning: “Court strikesdown JCPS student-assignment plan,” TheCourier-Journal (Louisville), Oct. 1, 2011, p. A1;“Ky. Justices may favor JCPS,” ibid., April 19,2012, p. A1.65 See Stephanie McCrummen, “In N.C., anew battle on school integration,” The Wash-ington Post, Jan. 12, 2011, p. A1.66 See Julie Hubbard, “Metro Nashvilleschools rezoning lawsuit could echo far,” TheTennessean (Nashville), April 30, 2012.67 See Abbe Smith, “Firefighters get $2 million,”New Haven Register, July 29, 2011, p. A1.68 The decision is Briscoe v. New Haven, 10-1975-cv (2d Cir., Aug. 15, 2011), www.ca2.uscourts.gov/decisions/isysquery/2a558a1b-8e49-4693-80fe-73210ac25bd3/2/doc/10-1975_opn.pdf#xml=www.ca2.uscourts.gov/decisions/isysquery/2a558a1b-8e49-4693-80fe-73210ac25bd3/2/hilite/. For coverage, see Luther Turnelle,“Firefighter case is reinstated,” New HavenRegister, Aug. 16, 2011, p. A3. The SupremeCourt declined to hear the city’s appeal onJune 11, 2012.69 Press release, April 23, 2012, www.justice.gov/opa/pr/2012/April/12-crt-517.html. Forcoverage, see Steve Patterson, “U.S. sues cityover firefighter tests,” Florida Times-Union(Jacksonville), April 24, 2012, p. B3.70 The case is Rothe Development Corp. v.Department of Defense (Fed. Cir., Nov. 4,2008). For coverage, see Elise Castelli, “Court:DoD minority contracting program unconsti-tutional,” Federal Times, Nov. 10, 2008, p. 6.See also Jody Feder and Kate M. Manuel,“Rothe Development Corporation v. Departmentof Defense: The Constitutionality of FederalContracting Programs for Minority-Owned andOther Small Businesses,” Congressional Re-search Service, March 16, 2009, www.fas.org/sgp/crs/misc/R40440.pdf.

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