In a landmark U.S. Supreme Court ruling on affirmative action in 2003, then-Justice Sandra Day O’Connor wrote, “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest” of promoting diversity in education.
Less than four years after the court narrowly upheld the consideration of race in admissions at the University of Michigan’s law school, however, Justice O’Connor’s premise is being put to the test in the courts and at the polls.
Next week, the Supreme Court returns to the highly charged topic of racial diversity in education.
Parents in Seattle and in Jefferson County, Ky., which includes Louisville, have challenged their local school districts’ voluntary use of race in assigning students to schools. The parents say that they and their children have been harmed by the assignment plans, and that whatever compelling need might once have justified such a use of race no longer exists.
They want the high court to overrule its decision in Grutter v. Bollinger, which upheld the race-conscious admissions plan at Michigan’s law school. In a companion case, Gratz v. Bollinger, the justices struck down an undergraduate-admissions plan at Michigan that automatically awarded bonus points to members of underrepresented minorities. At a minimum, the parents say, the Grutter decision should not be applied to K-12 public education.
The school districts, on the other side, say the race-conscious assignment plans are necessary to preserve in their schools and classrooms racially and ethnically diverse populations, which deliver crucial social and educational benefits.
Meanwhile, the dust has barely settled from Election Day, when Michigan voters, by approving Proposition 2, brought to three the number of states that have barred most state and local government preferences based on race, including in public education and government contracting. (“In Michigan, Ban on Affirmative Action Prompts Lawsuit,” Nov. 15, 2006.)
While the Michigan vote has no direct effect on the school cases coming before the justices Dec. 4, legal analysts say it shifts the ground underlying race-conscious policies.
“The vote in Michigan makes the point that racial preferences in the United States are very unpopular,” said Roger Clegg, the president and general counsel of the Center for Equal Opportunity, a think tank in Sterling, Va., that opposes race-based admissions policies.
Economic Concerns?
Proposition 2, also known as the Michigan Civil Rights Initiative, will make the Grutter decision moot in the state’s public universities if the measure withstands an expected volley of lawsuits to block it. Two such challenges have already been filed.
But the measure may not have a strong impact on Michigan’s elementary and secondary schools, according to the Citizens Research Council of Michigan, a nonpartisan research group based in Livonia, Mich., that prepared a report for voters on the proposal.
The report said the measure would bar public schools from using race- or gender-based preferences in hiring but did not consider other race-conscious policies that might be subject to a challenge under the provision.
An amendment to the state constitution, the proposal won handily, by 58 percent to 42 percent, after a bitter campaign in which the state’s labor unions and most of Michigan’s top leadership opposed it.
Ellen S. Buchman, the director of field operations for the Washington-based Leadership Conference on Civil Rights, who campaigned against the initiative, said the vote reflected economic insecurity in a state that has an ailing economy and is losing jobs to overseas factories. According to CNN’s exit poll, 64 percent of white voters voted for the initiative, while 86 percent of African-Americans voted against it. Women also voted for Proposition 2, by 52 percent to 48 percent.
The Coalition to Defend Affirmative Action, Integration, and Immigrant Rights and Fight for Equality by Any Means Necessary, a Detroit-based group that opposed the initiative, has filed two federal lawsuits challenging the measure’s validity.
The passage of the Michigan initiative provides fresh evidence that the movement against affirmative action led by Ward Connerly, a former member of the University of California board of regents, still has momentum. The Michigan proposal was based on the 1996 California measure, pushed by Mr. Connerly, that prohibits preferential treatment based on race and sex in state and local public employment, education, and contracting. Washington voters passed such a measure, known as the Washington State Civil Rights Initiative, in 1998.
Ellis Cose, a contributing editor at Newsweek magazine who has just published a book on the status of affirmative action in the United States, sees Mr. Connerly’s decision to go to Michigan as a deliberate response to the Supreme Court’s decisions involving the University of Michigan.
“The Michigan fight, in other words, was to be a grand rematch—a restaging of the contest that had brought a split decision in the Supreme Court (a loss in Grutter, a win in Gratz), in hopes of scoring a knockout before the Michigan electorate,” Mr. Cose writes in his book Killing Affirmative Action, published this month.
March on Washington
Now that Michiganders have spoken, some advocates on both sides of the issue as well as observers of the Supreme Court wonder whether the anti-affirmative-action message from voters will ripple through the justices’ minds as they take up the two K-12 cases, Parents Involved in Community Schools v. Seattle School District No. 1 (Case No. 05-908) and Meredith v. Jefferson County Board of Education (No. 05-915).
Though legal experts often debate the degree to which the Supreme Court responds to political trends, some partisans on the affirmative action issue have little doubt that it does.
The Michigan vote “could reassure some members of the court, that if they do the right thing in the Seattle and Louisville cases and strike down the use of racial preferences there, they will not be going out on a limb politically,” said Mr. Clegg.
Civil rights groups and unions, meanwhile, are trying to apply public pressure by organizing a Dec. 4 march in the nation’s capital, to follow the same route as a 2003 march held the day the high court heard arguments in Grutter and Gratz.
“The court’s ruling in these cases will be based on political, not just legal considerations,” asserts the Web site of By Any Means Necessary, which is publicizing the march. “This means that we must have a social and political response to affect the outcome of these lawsuits.”
“Put plainly, this Supreme Court will decide whether to stand on its most seminal decision, Brown v. Board of Education, or return to Plessy v. Ferguson’s notorious legal fiction of ‘separate but equal,’ ” the site says.
More-nuanced arguments on affirmative action were aired the panel discussion that Mr. Cose led in Washington. Barbara Grutter, the plaintiff in the 2003 law school case who campaigned for Michigan’s Proposition 2, said that “the people of Michigan would not say that what they did is an anti-affirmative-action vote, but for equal justice under law.”
Dennis D. Parker, the director of the racial-justice program of the American Civil Liberties Union, replied, “The problem with trying to propose a race-blind structure is that it only perpetuates a situation of unfairness.”
Panelists on both sides seemed to agree, though from opposite perspectives, that Justice O’Connor was naïve in expecting that the government would need race-conscious policies for the next quarter-century.
Quipped Ms. Grutter, “What was she smoking?”
