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Wednesday, June 25, 2003
 

Sacramento Bee 6-25-03

Peter Schrag: Affirmative action: Back to Bakke's useful fudge

 

Five days shy of the 25th anniversary of the U.S. Supreme Court's decision in Regents of the University of California. v. Bakke, the court has narrowly reaffirmed Bakke, permitting use of race as a "plus factor" among many others in the individual evaluation of applicants for university admission.

At the same time, the justices made clear that one plus factor meant precisely that. It didn't mean a formula in which extra points were categorically awarded to so-called underrepresented minorities. It didn't mean that race was worth 20 points when musical genius or handicaps overcome were worth no more than five.

As a practical matter, the decision won't touch the great majority of American students, who attend non-selective colleges. Its prime importance is as a symbol in a still-contentious area of American life.

The court's ruling, handed down Monday in two related cases arising at the University of Michigan, will not end litigation about affirmative action in college admissions, much less stop the ongoing controversies about the use of race in favoring blacks or Latinos in hiring, university admissions and other fields.

Indeed, it contains ambiguities -- particularly about colleges' needs to achieve a "critical mass" of minority students -- that beg for moral and legal challenges.

What is a critical mass, who determines it and why isn't it a quota? And as Justice Antonin Scalia warned in a sardonic dissent, a whole set of issues, from race-based scholarships to ethnically segregated graduation exercises, raise further questions. But like Bakke, it's a useful fudge.

For the moment the Michigan decisions, read together, yield a measure of certainty, despite the justices' volley of opinions -- 13 altogether in two cases. They converts what had been Justice Lewis Powell's sole opinion in the highly fractured 5-4 Bakke ruling into a pair of decisions that a majority of the justices signed. And the Michigan decisions restore a bit of unity to an area of law where lower appellate courts in different parts of the country had issued sharply different rulings.

But since the court's majority, and indeed much else on the current court, has depended on the swing vote of Justice Sandra Day O'Connor, this decision, too, is fragile and thus makes the stakes in the fight over the choice of new justices -- already intense, even though none has yet announced his or her intention to retire -- even nastier.

The Michigan cases themselves, like the controversy over race preferences at the University of California that led to the passage in 1996 of Proposition 209, which prohibits the race considerations that the court permits, would probably never have arisen if selective universities hadn't taken that sensible "plus factor" and expanded it far beyond the narrow limits that Powell's opinion permitted.

Thus, in a way, the country has spent 25 years getting back roughly to where it seemed to be on June 28, 1978, when the Supreme Court struck down the UC Davis Medical School's admission system, which reserved 16 places annually for minorities.

There are differences. Public support for racial preferences, even in the name of affirmative action, is more tentative than it was 25 years ago. Voters in California and Washington have outlawed race preferences in public-sector activities and a third initiative in Florida came close enough that Gov. Jeb Bush replaced affirmative action with an admissions policy in which the top 20 percent of the graduates of each high school are automatically admitted.

There are plenty of ironies here. At UC, whose case set the standard that the justices upheld Monday, the issue is moot. UC, in part because of the excesses that led to California's prohibition of race preferences, will be only marginally affected by these rulings.

The university may feel more pressure from activists to make additional accommodations in admissions to bring in more minority students. And since private universities can continue to consider race in their admissions and financial aid, UC probably will continue to be at a competitive disadvantage in attracting highly qualified blacks and Latinos.

The selective private colleges are most affected. Although they were not officially in this case, all receive federal funds, and thus a decision outlawing affirmative action would have jeopardized their affirmative action programs as well. For most students and most public institutions, which admit most, if not all, applicants, it will have almost no impact.

What will have a major impact has nothing to do with the court: It's the tough fiscal conditions of the states, the rising fees and reduced access to classes, the shrinking pool of financial aid, the crowded classes that come with them and the shabby K-12 schools that many are forced to attend.

The affirmative action battle has been largely a fight among elites for access to elite institutions. The Michigan decision, reflecting the nation's own ambivalence, makes policy sense, however much it fudges legally. That's not unimportant, but for the great majority of U.S. students, there are other, higher stakes.