Imagine you are preparing to play in the Final Four this weekend. Years of practice, experience and hard work culminate in one big showdown. Then imagine the referee mugs you.
This is exactly what happened yesterday in the Supreme Court. Three people denied admission to the University of Michigan law school got their day in court. The three plaintiffs stated that they were denied admission due to their race (they are white). This was one of the strongest cases in years to challenge California Board of Regents v. Bakke, a case 20-plus years old that upheld affirmative action. If things pan out as it appeared to in court, Bakke appears to be safe.
So what happened, and why should you care?
The University of Michigan used race as one of many factors to consider when putting together its student body. The school wanted to achieve a “critical mass” of a student population we can assume would be minorities. This phrase “critical mass” was not a quota and seemed to serve the school’s desire for a well-balanced learning environment.
Barbara Grutter, 43, and two undergraduates were denied admission. Conservatives sensed a golden opportunity to take down affirmative action.
Ms. Grutter’s lawyers entered the Supreme Court on Tuesday prepared to make the case that race is the only factor that denied them access. What follows is that the Constitution doesn’t allow race to be the only factor when considering an applicant to a publicly funded school. Lawyers called the program to increase diversity “an end in and of itself” and therefore “constitutionally objectionable.” They contended that the principles of equality set forth in the Constitution do not provide for this sort of differentiation.
The Supreme Court thought otherwise.
The fact is that race is used all the time when the Supreme Court makes its decisions. The whole point behind Brown v. Topeka Board of Education was that race was the deciding factor in forcing the desegregation of public schools. The entire civil rights movement was predicated on the idea that while this country is founded on equality, its government and laws are quite the opposite. The Supreme Court has found over and over that race is just fine when making certain decisions, from fair housing to redistricting.
The Bush Administration decided to take a side in this case. Solicitor General Theodore Olson was sent to argue on behalf of the government that race neutral admissions were the only sound policy for a publicly funded university. The (no pun intended) black and white argument he presented was questioned repeatedly by the justices who felt that a more balanced approach was required.
A tipping point for the judges was a brief filed by former superintendents of the military academies of the United States Armed Forces. In this brief, the former military commanders contended that a diverse officer corps was impossible without race preferential admission policies. Mr. Olson was questioned repeatedly about how to address this issue, and he seemed to be at a loss.
One might ask why the Bush Administration would weigh in on this topic. The fact is, affirmative action is a problem that sticks in the craw of Republicans. For years they have fought the admission of students due to their skin color or background when it seems to threaten the admission of white students.
Republicans and conservatives would claim that they are actually more interested in equality than those that would admit students because of color. This is fine, if you live in the fairy tale world that these people inhabit.
Who can claim schools in this country are equal? Who can claim that minority applicants haven’t had obstacles present that many white applicants have not? Who can claim that a diverse school population is not in the interest of a school?
It is suspect to claim that racism and inequality have vanished from this country. When we attend a school as non-diverse as ours, it is imperative that we consider the implications if Ms. Grutter wins. Schools that don’t consider race will still have qualified applicants of all races apply. The problem is that factors outside of your test scores, no matter what your race, won’t be considered. We all know that each person has many more qualities than a standardized test can reveal. Not allowing a more in-depth approach reduces applicants of any school to a string of numbers.
It appears that the Supreme Court justices live in this reality. They acknowledge that affirmative action is meant to create equality and increase opportunity. They know this country has many years to go until the opportunities our fortunate sons and daughters have are extended to all races.
While some may portray the Bush Administration’s stance as one of true equality and respect, I look at it as a cynical attempt to sustain the status quo. Thankfully, the Supreme Court didn’t seem to buy the ruse either.
Rob Deters ([email protected]) is a first year law student.
