Affirmative action rulings don't end debate Rutgers experts weigh in on Supreme Court's historic decision Archived article from Sep 8, 2003   Also in this article: An odd legacy Court decision a pyrrhic victory Redefining affirmative action Court validates law school's policies Decisions continue to challenge higher education As legal scholars continue to debate the implications of the U.S. Supreme Court's decisions this summer upholding some use of race as a factor in university admissions, Rutgers University faculty and administrators remain heartened by the central message articulated by the justices: A diverse student body is essential to an excellent education. In separate cases involving the University of Michigan's undergraduate and law school admissions processes, in June the Supreme Court embraced the broad aims of affirmative action while reaffirming that racial quotas are unconstitutional. In Grutter v. Bollinger, the court upheld a program, in a 5-4 vote, that uses race as one factor among many in selecting students for the University of Michigan's law school. But in a second decision, Gratz v. Bollinger, the Court voted 6-3 to strike down a University of Michigan undergraduate admissions process based on a point system because sometimes it made race a "decisive" factor, rather than just one of many in determining who was admitted. "I applaud the court for determining that race may be considered among many factors in the college admissions process," said Rutgers President Richard L. McCormick. "The court has reaffirmed the value of diversity on our campuses and has given us guidance on the tools we may use to achieve it. We will continue to embrace diversity as a core value because it enriches the educational experience for all of our students and thus benefits our entire society." At Rutgers, most minority students are admitted without regard for their race or ethnicity. A small number of students — about 5 percent — are admitted to enhance diversity at Rutgers through their special talents, racial or ethnic background, geographic origin or specialized interests. Stuart L. Deutsch, dean of Rutgers School of Law–Newark, said the high court's decision was what the law school had expected and hoped for. "What we do here is exactly the kind of thing that the court upheld, " Deutsch said. Rayman L. Solomon, dean of the Rutgers School of Law– Camden, says that the decision affirms the legitimacy of race-conscious admissions programs to promote diversity, which has been debated since the 1978 Bakke decision. Nonetheless, legal experts do not believe that the rulings will be the last word. "As long as our society lacks an overwhelming consensus on the costs and benefits of affirmative action, challenges to programs will exist," Solomon says. "We should also not forget that Justice O'Connor wrote that she expects that ‘25 years from now, the use of racial preferences will no longer be necessary.' We can only hope that by then our society will have progressed to the point that Justice O'Connor is correct." —Carla Cantor An odd legacy By Carmen Twillie Ambar In 1994 I was in Arkansas preparing for my wedding and studying for the bar when my fiancé called while apartment hunting in New York City with unsettling news. "They're asking, ‘What kind of name is Ambar? Are you black or Spanish?'" Having grown up in Little Rock, I wish I could say I was outraged. But I didn't have time for outrage; we needed an apartment. "Guess you better keep looking," I sighed. After weeks of the same, he prefaced over the phone that he was black, and to let him know if this was a "problem." Two master's degrees and one law degree between us were irrelevant. In the end, what people cared about was what they saw. Race. Few are willing to address it. The recent Supreme Court decision does however rightly recognize the sad truth that race is still inherently impacting. Whether it's poor, segregated schools, access to higher education, getting a loan, or even entering a department store, race still too often inspires fear, bias and, ultimately, disadvantage. Justice O'Connor suggested that 25 years hence, the need to address such inequities would pass. Perhaps. Yet in the interim, what is to be done? Because access to educational opportunities is the quickest way out of "disadvantage," this is unequivocally the best place to start. Rutgers' role as a public university in this effort matters because the university's role in affirmative action is a key step toward societal transformation. It's the ability to continue to use higher education as a means of transforming society that makes the recent Supreme Court decision about affirmative action so important. Ultimately, we still have a chance to deal squarely with this issue of race. To suggest affirmative action damages our meritocracy fails to recognize that we never truly had one. We must redefine our concept of merit, or acknowledge what it is not. Intellectual prowess may not always trump family wealth, personal connections, legacy, or athletic ability. But admission is never that simple. Oftentimes one must search for the "merit" within these various reasons for admission. Yes, affirmative action is about righting past and current wrongs. But the greater good of affirmative action is the value of diversity. It adds richness to the tapestry of institutions of higher education. World affairs remind us that diversity is America's greatest strength. We would do well to nourish it. In my view, affirmative action is far closer to what fairness in higher education ought to be than President Bush's legacy entry into Yale. I often think about the Queens family that finally rented us an apartment. The landlord was Greek, very old country, and he too asked our race over the phone. But when the deal was surprisingly finalized we were invited to their downstairs apartment for cookies. And we met his granddaughter. "She is beautiful, no?" And she was. Cute as a button. And quite brown. His son, Nick, had married a lovely black woman from the Caribbean. We all smiled. Without even knowing it, I had been the recipient of one of the oddest legacy entries yet. Carmen Twillie Ambar is dean of Douglass College. Court decision a pyrrhic victory By Frank Askin Bakke lives, and university officials all across the country are breathing easier. The U.S. Supreme Court ruling in the Michigan Law School case that governmental institutions have a compelling interest in promoting diversity in education and the workplace is a great victory for America. In so deciding, the opinion written by Justice Sandra Day O'Connor for the five-member majority relied heavily on friend-of-the-court arguments advanced by leaders of the military and business communities that "the skills needed in today's increasingly global marketplace can only be developed through exposure to widely diverse people, cultures, ideas and viewpoints." While applauding the court for what it did not do (overrule Bakke), it must also be recognized that the decision is in part a Pyrrhic victory, because it accepts the notion that government programs that aid minorities to overcome the historic effects of past discrimination and slavery are to be adjudicated under the same color-blind "strict scrutiny" standard as programs that invidiously discriminate against members of minority groups. That was not the original intent of the "strict scrutiny" doctrine, first announced by Chief Justice Harlan Fiske Stone in a footnote in a 1938 opinion. As originally enunciated, the doctrine required courts to defer to legislative and other governmental decisions except when those determinations harmed the interests of "discrete and insular" minorities who lacked the clout to correct such outcomes in the political arena. In the latter situations, government programs would be subject to "strict scrutiny" and had to be justified by a compelling government interest. The current court majority has eviscerated that principle by invoking the notion of constitutional color-blindness. But the fallacy of the current standard was exposed by the eminent Southern jurist John Minor Wisdom in one of the important civil rights decisions of the 1960s as follows: "The Constitution is both color blind and color conscious. To avoid conflict with the equal protection clause, a classification that denies a benefit, causes harm or imposes a burden must not be based on race. But the Constitution is color conscious to prevent discrimination being perpetrated and to undo the effects of past discrimination." Or as restated by Justice Ginsburg in her dissent in the Michigan undergraduate case, "our jurisprudence ranks race a ‘suspect' category, not because race is inevitably an impermissible classification, but because it is one which usually, to our national shame, has been drawn for the purpose of maintaining racial inequality." So while the Michigan decision was a welcome one for those of us who support a more equitable society in which members of racial minority groups will one day be fully integrated into the social mainstream, it was also a reminder that we have already lost the major battle in the struggle for racial justice. Strict scrutiny was never intended to require extraordinary justifications for programs whose obvious purpose was to enhance opportunity for members of historically oppressed minority groups. Frank Askin is professor of law at Rutgers School of Law–Newark Redefining affirmative action By Anna Stubblefield In a recent speech, Cornel West, professor of philosophy, religion and Africana studies at Princeton University, said that he was "delighted" by the Supreme Court's decision in Grutter v. Bollinger but did not "celebrate." In my view, even "delighted" is too strong a word. I feel relieved by the decision in Grutter, insofar as it preserves the possibility of some affirmative action. Quite frankly, I feel frustrated by the whole issue. I am frustrated that we are talking about affirmative action in terms of "diversity." I am waiting for a university to defend its affirmative action program on the grounds that it, along with all the other public institutions of higher learning in this country (not to mention primary and secondary schools), owes reparations to the black citizens of this country who have for generations supported public schools, colleges, and universities with their taxes, while being excluded from them or denied the best they had to offer. I am frustrated because debates over affirmative action have historically obscured and continue to obscure the real issue, which is how we define "merit." Elite public universities base their admissions on standardized test scores, which they acknowledge to be racially discriminatory and to inaccurately measure the potential of any student, because they want to maintain their "prestige" and exclusivity measured in traditional ways. Then they use "affirmative action" to tinker with these criteria just enough to let in a handful of black, Hispanic, and American Indian students in order to stave off charges that they are discriminating against "minorities." Clarence Thomas cites this hypocrisy on the part of elite public institutions as one of his reasons for objecting to the practice of affirmative action. Where I differ strongly with Thomas, however, is that if the Supreme Court were to rule that affirmative action is unconstitutional in any form, that would NOT send the message to elite schools that they need to revise their notions of merit and how they measure it. It would simply send the message that they do not need to and should not worry about the racial composition of their classes and the legacy of racial discrimination in this country at all. What we need is a conversation about leadership in academia. What we need at our "elite" public institutions are administrators who have the courage to define "quality" in faculty and students in the right way, rather than in the traditional way. For faculty, "quality" should be defined in terms of innovative research that challenges rather than perpetuates the status quo, and in terms of excellent teaching. For students, "quality" should be defined in terms of their having made the best of the educational resources that were available to them: effort in overcoming educational obstacles; willingness to determinedly challenge themselves whenever possible; and demonstrated improvement in the face of educational challenges. For both, quality should be defined in terms of service to impoverished and oppressed people and communities. It should be defined in terms of demonstrated commitment to alleviating human suffering, including scientific and medical research that benefits ALL of humanity, not improved quality of life for some at the expense of the quality of life of others. When we define "merit" in these ways, we will not need affirmative action in either student admissions or faculty hiring. We will know that in training these students and hiring these professors, we are truly training and employing our best and brightest citizens. Anna Stubblefield is an assistant professor of philosophy, Rutgers–Newark. Court validates law school's policies By Stuart L. Deutsch and Kenneth Padilla We are quite pleased that the Supreme Court's decision in Grutter v. Bollinger, dealing specifically with law school admissions, validates the Rutgers School of Law–Newark admissions policy. It means that we will be able to continue our admissions process without any major adjustments and maintain the law school's historic commitment to diversity in the classroom and the legal profession. The law school's admissions policy, adopted in its current form in 1999, allows applicants to choose whether to be evaluated primarily on numerical factors (LSAT and undergraduate grade point average) or primarily on their experiences and accomplishments. Both options require the admissions committee to conduct an intensive, individualized review of each applicant's file, a major task given that we receive approximately 3,700 applications each year for 180 full-time and 65 part-time positions. Each file is read by at least three people, and the decision requires a consensus of the group. Two additional readers, both senior faculty members, are brought into the process if the first three readers cannot reach a consensus. While this type of review is arduous and time-consuming, RSLN's commitment to diversity is more compelling, as is our desire to accept the best possible students to maintain the rich community we have created over the history of the law school. Through this process, we have become one of the most diverse law schools in the country, with approximately 35 percent of the students who are people of color (of course, the number changes from year to year). In many ways, the Supreme Court's decision reads as if it were written specifically to approve our admissions process. The court held that diversity was a compelling state interest, which means that achieving diversity is a legitimate goal for the law school (so long as the process is narrowly tailored to achieve that goal). As such, race can be taken into account as one of many factors considered in the admissions process, provided that the law school engages in an individualized review of each applicant. The court found that "[w]hen using race as a ‘plus' factor in university admissions, a university's admissions program must remain flexible enough to ensure that each applicant is evaluated as an individual and not in a way that makes an applicant's race or ethnicity the defining feature of his or her application. The importance of this individualized consideration in the context of a race-conscious admission program is paramount." Of course, the dissenting opinions in Grutter and the majority decision in Gratz provide warnings for the future. Justices Scalia and Thomas, in particular, show strong hostility toward any use of race in admissions, and Justice Scalia sets a roadmap for future lawsuits, ranging from whether a process "contains enough evaluation of the applicant ‘as an individual'" to whether a university has "gone below or above the mystical ... ‘critical mass.'" Even the majority opinion, written by Justice O'Connor, asserts that affirmative action programs should be viewed as temporary tactics, and that 25 years from now, they shouldn't exist. Since the law school admissions policy relies on extensive recruitment efforts by faculty, students, alumni, and administrators to attract a diverse student body, we shouldn't encounter any problems in the near future. Nevertheless, the law school will continue to carefully evaluate its admissions program. Stuart L. Deutsch is dean and professor of law. Kenneth Padilla is the assistant dean for the Minority Student Program and Externships at the Rutgers School of Law–Newark. Decisions continue to challenge higher education By Rayman L. Solomon Grutter v. Bollinger, like many constitutional law cases of the last half-century, has its roots in Brown v. Board of Education. Brown, however, resulted in two opinions: Brown I (1954) declared that de jure segregated public schooling was unconstitutional, while Brown II (1955) imposed the remedy. The U. S. Supreme Court instructed the lower federal courts to eliminate the unconstitutional segregation "with all deliberate speed." As the well-known history of the 25 years after Brown II revealed, implementation of a remedy faced hostility in the North as well as the South. It took federal troops to force integration in some areas of the South and unpopular massive busing programs in the North. Despite the elimination of de jure segregation, controversies over the completeness and effectiveness of public school integration still abound. Segregation in housing and a disproportionate level of poverty in minority communities have prevented complete integration. To expect the lower federal courts to create and achieve a social or cultural consensus was never realistic. The history of the desegregation of law schools is somewhat different. Four years prior to Brown, the Supreme Court in Sweatt v. Painter had declared separate but equal law schools to be unconstitutional and ordered the state of Texas to integrate its law schools. During the subsequent three decades, public and private law schools made only gradual progress in raising the percentages of minority students. At all levels and in all fields of higher education programs were developed to remedy this. Since the number of places in colleges or law schools (unlike public elementary and secondary schools) is relatively fixed, affirmative action programs came under attack as discriminating against majority students. A very divided court in Bakke (1978) held in an opinion by Justice Powell that quotas were illegal, but that race could be used as "a factor" in higher education admissions decisions. The lower federal courts were to supervise the colleges and universities in working out the details of constitutional programs. Thus Grutter is a challenge to 25 years of higher education experimentation. The plaintiffs argued both the principle that race could be used as a factor was unconstitutional, and that even if it could be used, the Michigan program was a disguised quota. Justice O'Connor's opinion for the majority reaffirmed the constitutionality of the principle as well as of Michigan's law school program. Law deans, like other administrators, breathed a sigh of relief, even if most commentators had predicted this result. For Rutgers–Camden, as for most schools whose admissions policy is similar to that of Michigan's law school, change is not required. However, Justice O'Connor concluded her opinion by stating that the 25 years since Bakke had seen great progress in minority enrollments and that she expected that "25 years from now, the use of racial preferences will no longer be necessary." It is exactly on this point that the subsequent history of Brown becomes relevant. As long as no political and social consensus exists as to whether affirmative action is just, we should expect programs to be challenged. But more fundamentally, if minorities do not dramatically benefit from improved housing, primary and secondary education, and economic prosperity during the next 25 years, Justice O'Connor's expectation, like Dr. King's dream, will be unfulfilled. Rayman L. Solomon is dean of Rutgers School of Law–Camden.

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