GUTTER FOR GRUTTER?

The Washington Square News is a newspaper published by New York University.

This columnist reacts to a Stanford Law Review article, here, by UCLA academic, Dr. Rick Sanders, on the subject of race conscious admissions in higher education.  In a recent talk, noted on this site, Justice Clarence Thomas, an opponent of affirmative action, who feels it stigmatizes and demeans black achievement, asked a law class where, exactly, did the Supreme Court get this idea of 'diversity?'

Affirmative action in its original form meant trying to do something useful for blacks who'd been left in the lurch while whites marched on following the end of the Civil War.  Pres. Lyndon B. Johnson, in signing the Civil Rights Act of 1964 stated that it was unfair, in running a race, to suddenly put an unchained, untrained runner in the starting blocks of a race against competitors who were already up to speed, so he wanted to do something to even the chances.

The problem, as Ward Connerly, a prominent Californian and Regent at U.C., is that affirmative action rewards the wrong people and punishes the wrong people.

In Regents of U.C. v. Bakke (1978), Justice Lewis Powell, writing an opinion that was not joined by any other justice, as in 8:1 not in favor of his view, joined with a plurality to say it was okay to consider race in admissions to professional schools, so long as you didn't quantify admissions by race, ethnicity, etc., using quotas and points. A little bit of reverse discrimination was going to be allowed to counteract a lot of original discrimination that had gone on for years.  This, of course, drives some people nuts.  Equal protection either means equal or it doesn't.

It doesn't.

This is one of those situations, apparently, where an ounce of history, and politics, is worth a pound of logic. 

Justice O'Connor, the tip-weight vote in Gratz and Grutter v. Bollinger (2003), expressed the hope that affirmative action will not be necessary in 25 more years.  What kind of constitutional right is it whose most influential backer hopes it will disappear soon?

The interesting thing about Justice Powell's unjoined opinion in 1978 is that he decided to vote for affirmative action, in Bakke, on the theory that it was good for blacks and whites to sit in the same class together.  This certainly sounds and looks good, but some blacks asked, "We have to sit next to whites in order to learn?  Since when?  We've been learning for years in historically black colleges seated next to each other, thank you very much."

So much for diversity being necessary to learn.  Blacks don't learn by osmosis by sitting close to whites, any more than the reverse.  People learn because they are interested and they pay attention, i.e., participate in class, study, and, one hopes, talk with one another. 

What I'd like to see in a mixed class is for a student to say,

"From my point of view as a white person, I can see why Jim Crow was put in place and lasted so long." 

And then I'd like to see a black or asian student say,

"Speaking as a black (or asian, for example) person, I'd like to say,

"Are you nuts?  How would you like it if it was YOU who had to put up with being treated like a last class citizen...? etc." 

But I don't see that happening.   

I don't expect to.

Too delicate and sensitive an issue.

Seems that a Con-Law class is exactly the sort of place to air such issues, however.  We have a license to talk.

Hell, we have a duty to talk.

***

During a class discussion of slavery and Jim Crow, a (white) student asked whether I didn't think some slave owners in the South treated their slaves with respect.

I didn't think so, I replied.  Any system that holds people under the whip and the lash doesn't resemble any kind of respect according to my understanding of the term. 

I felt bad for coming down so bluntly in reply, and said so.  The student said he hadn't minded. 

Several of the black students told me they were glad I'd set matters straight.

What I should've done was to have thrown the student's question open to the class to discuss, rather than field it myself. 

Let the students figure out what respect means, and when appearance isn't reality.

***

Nevertheless, in Gratz and Grutter, 25 years after Bakke, 'diversity' was the idea that commanded a court, i.e.  got at least 5 votes to uphold affirmative action.   So long as you didn't set quotas or award points for race.  A little bit of racism, or reverse discrimination was still going to be okay. 

Justice Thomas was challenging the law students he was addressing to consider this idea of diversity.  Who invented that, and why, and did it make sense, he was asking.

He catches flak for talking like this.  Gets picketed when he gets invited to Howard U. in D.C., a historically black university, IF he's invited, and IF he accepts.

But there hadn't been studies on the effect diversity had on black students in professional schools over the past quarter century.  Dr. Rick Sanders tried to find out.  Hence his Stanford Law Review article and the reaction of the columnist below.

See what you think, as this issue promises to be with us for the next 25 years.

At least.

Especially if we don't talk about our Crazy-Aunt in the Basement...

Speaking of which, we speak of whites and blacks. 

We know that whites come in all varieties, hundreds if not thousands.

We speak of whites only in contradistinction to blacks.

Otherwise we never speak of 'whites.'  It makes no sense to speak of 'whites' if we're not speaking at the same time of 'blacks.'  If we're talking about skin and shade, but not about blacks, we talk about English, Irish, Jewish, Scandinavian, Mediterranean, Hispanic, Latino, European, Arabic, Slavic, you name it.  Anything but 'white.'  There's no such thing as 'white.' 

Chinese, I'm told, saw whites as pink, as in pork.  Roasted pork.  Whites only become white when being contrasted with black.  Forget brown.  Black baseball players, pre-Jackie Robinson, were Cuban. 

Isn't all this wonderful. 

This helps us get down the road, doesn't it.

But we still speak of blacks as though there were only one class, "blacks, " out there, that group that must exist in people's heads.

We don't even say blacks.

We say "inner city."

Who lives in the inner city?

White Anglo Saxon Protestants?

They're the ones who moved out, if they ever lived there.

Suddenly I hear George Carlin walking onstage.

When is the last time you saw a reference, an article, or a listing, to the hundreds, if not thousands, of varieties of people of color, the various shades, histories, cultures,  experiences, nationalities, origins, mixtures, sections, language, tongue, dialect, political orientation, political party, basic ideology, religious affiliation, economic level, military service and lack thereof, rank, class, age, gender, sexual orientation, eye color, hair color, fingernail style, hair style, clothing style, footwear style, left-handed, right-handed,  biases, and prejudices, swear word of choice, education, school you went to, team you root for, car you drive, instrument you play, choice of music, sport, relaxation, occupation, aspiration, and every other of the myriad ways in which we cut each other up? 

The way we do with "whites."

Show it to me when you find it, will you?

I'd like to know the difference between a Gitchee, a Gullah, and a Creole, for starters.

'Splain that to me, please.

Thanks.

It might turn out that these two supposedly mutually exclusive groups, historically at least in this country, which we call "black" and "white," are each a figment of our fevered imaginations. 

Maybe we've been fooling ourselves long enough.

Maybe the fever is beginning to subside in areas.

Did you know that during the days of official apartheid in the Union of South Africa, the popular TV series, "The Bill Cosby Show" was shown there?  Cosby was considered white, I've read.  This, in case you don't think that some of our ways of cutting each other up aren't more than a little crazy.

Tiger Wood is smart.  I'm Cablinasian, he says.

Good for Tiger!

Chris Rock!  You're up next.

* * *

Throw Grutter in the gutter

by Jonathan Cirpriani
Columnist

In the world of higher education, it almost goes unquestioned that the fuzzy doctrine of "diversity" is an unmitigated good, and that there is no better way to achieve that diversity that the institutionalization of race-based and sex-based admissions preferences, also known as affirmative action.

The idea that there are clear educational benefits to having lots of different people of different races interacting, even if some of the more rigorous standards for admission must be suspended in order to get them all there, is accepted at face value, even though very little social science research exists to support it.

But opponents of racial preferences will soon get a big empirical boost for their position from an article in an upcoming edition of the Stanford Law Review.

Before we get to that article, let's back up a minute and review the legal arguments for and against racial preferences. Opponents of race-based affirmative action have long justified their position by appealing to fairness and respect for individual rights.

It is practically indisputable that race-based affirmative action negatively impacts the admissions prospects of whites, Jews, Asians and other groups that are already over-represented on college campuses, in favor of other ethnic minorities like blacks and Hispanics.

It has also been argued that the equal protection clause of the 14th Amendment forbids government institutions, such as public universities, from discriminating on the basis of race; the amendment has no sub-clause granting exceptions to discriminate in favor of races that college administrators deem more desirable.

Private universities that accept federal funding - i.e. nearly all universities - would also have to forgo race-based admissions discrimination under the1964 Civil Rights Act, which reads: "No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance."

This was a compelling argument that, alas, fell on the deaf ears of racial preference supporters and ultimately, of our nation's highest court.

Racial preference supporters justified their position on the thin reed of Justice Lewis Powell's opinion in the Supreme Court's 1978 Bakke decision, which held that a public university's desire to obtain a diverse student body was a compelling state interest justifying racial discrimination.

Legal scholars contested whether Powell's opinion was binding precedent, but the point became moot last year when the current Supreme Court embraced his position in a close 5-4 decision in Grutter v. Bollinger.

In a confusingly argued opinion, Justice Sandra Day O'Connor wrote that the national hiatus from the 14th Amendment would only be temporary: "We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today."

Thus, thanks to O'Connor and her crystal ball, racial discrimination in higher education became the law of the land. But were Powell, O'Connor and the rest right? Do racial preferences really have long-term educational benefits? That is where Dr. Rick Sander, the author of the aforementioned Stanford Law Review article, comes in.

Sander is a committed liberal and professor of law at the University of California at Los Angeles whose past work includes studies of housing segregation. Moving the affirmative action debate out of the realm of arcane legal arguments, Sander's latest study examined data on black law students going back to the early '90s and found that, in the long term, racial preferences at law schools actually reduced the number of blacks practicing law.

It seems counterintuitive, but the data show that because of race preferences, blacks with lower academic credentials end up "mismatched" at higher-tier law schools where they are at a comparative disadvantage relative to their peers.

Sander notes: "The most obvious consequence of the grade gap in law school is that blacks are expelled, or drop out, at much higher rates than whites (19 percent of blacks don't complete law school compared to 8 percent of whites)." Those that do graduate fail their bar exams in disproportionate numbers, and ultimately, fewer blacks actually go on to become lawyers than would be the case had they attended universities more academically suited to them.

Sander's research seems to be a clear indication that, more than being just a divisive political wedge issue, race-based admissions preferences have failed the very students they were designed to benefit. Sander doesn't advocate completely abolishing race preferences - though he does think they should be substantially curtailed - but in light of his work, it's becoming increasingly difficult to support the use of race as a valid criterion for college admissions.

A truly inclusive affirmative action system would take into account not race, but economic status, benefiting the disadvantaged of all races.

Until our society begins to move in this direction, we will not be the place the Rev. Martin Luther King Jr. dreamed of when he envisioned an America where people are judged not by the color of their skin but by the content of their character. •

Jonathan Cipriani is a columnist for Washington Square News. E-mail him at [email protected]

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