FIRST YOU SAY WE MUST, THEN YOU SAY WE CAN'T

Back in the day, this country was even more segregated by race than it is today.  Then came Brown v. Board of Education (1954) which held that separate was inherently unequal.  The South put up "massive resistance" to forced integration, opening up private and church schools to keep the races separate.  In those days there were only two races, black and white.  Today we are conscious of many more.

Forced busing, which is what forced integration often translated to, forced white parents to flee to the suburbs so that their kids didn't have to go to school with black kids.  There have been decades of litigation in which U.S. District Courts have assumed the responsibility of overseeing that schools achieve a reasonable racial balance within a reasonable time.  For some parents that meant "Never."

Today we see the issue of racial integration in publicly funded education at all levels (most public schools accept some federal funding, if only for the lunch program) appearing in a new form:  affirmative action.

Affirmative action refers to government plans to overcome past official racial discrimination whether by law or in fact (de jure or de facto) by setting up special programs that give preferences to blacks in hiring, obtaining public contracts, and in education.

If the University of California Medical School only has 100 openings for medical students, and blacks have a quota of seats reserved for them, or are awarded bonus points on account of race, is this a noble effort to achieve racial balance and overcome past discrimination, or is it unfair discrimination on account of race, at least to the whites who either lose out or feel the game is stacked against them and in favor of blacks.

That was the Bakke case in 1974 (check the date) when the court divided four to four on the issue but Justice Lewis Powell decided that a little bit of racial preferment would be okay to promote racial diversity in education, so long as the program did not amount to an ascertainable quota or set of bonus points.

For the next quarter century plus, university admissions officers could give the admissions nod to blacks on the basis of race over equally qualified whites.  What happened to mixed-race kids I have no idea.

But a few years ago a young white woman named Grutter applied to the University of Michigan law school but was rejected in favor of blacks who had been awarded racial points.  Grutter felt she was more qualified and protested that she was the victim of reverse racial discrimination because she was white.  Her argument was that a publicly funded university may not treat her less than as equal on account of race.

In another five to four decision, with the tip-weight being Justice Sandra Day O'Connor, the Court held that public universities could take race into account to achieve racial balance provided it wasn't done so crassly as to award points or seats as in a quota based on race.  The main reason seems to have been that the military services weighed in with a strong amicus brief arguing that the Army had a bad experience in Vietnam, with black soldiers led by white officers who failed to communicate or command respect.  Result:  fragging incidents against the officers.  In order to achieve a balanced officer corps in the event of another major war requiring the nation to mobilize millions of soldiers, there had better be a diverse officer corps.  And where do officers come from?  The college ranks.  So we had better make sure that the colleges are reasonably integrated.

Justice O'Connor sided with the four who voted in favor of a little bit of racial balancing being okay.  But hopefully, she said, this wouldn't be necessary in another 25 years.  This is no time at all in constitutional law terms.  It's like two weeks.  Is this country going to overcome its racial biases in two weeks?  I doubt it, despite whatever progress you can point to.

Last week the issue returned to the Court and here we see a good idea turned around on itself.  If segregation by race was bad in 1954, and integration by race has been good ever since, what happens when integration produces victims of racial decision-making such that they can plausibly maintain that they are not being treated equally, but are victims of racial discrimination in reverse.

A leader in the fight against institutionalized reverse discrimination is Ward Connerly, who served as a University of California regent, where he observed that the affirmative action program allowed under Bakke was producing a form of racial politics in university admissions and other areas.  He thus promoted a ballot proposition to forbid the State of California from using race to award admissions to schools, public contracts, and employment, such as police and fire-fighting jobs where protests often come up.  His argument is that black students who accept racial preferences are thereafter stigmatized, as are blacks who don't but who succeed in head-to-head competition.  He also points out that affirmative action programs punish the wrong people and reward the wrong people, since we've come down the road apiece since the days of slavery and Jim Crow.  Since he believes that minority groups are every bit as capable of competing as others, they should get on with it and not rely on artificial aids which only serve to hamper them in the long run.

Connerly's initiative won in California and I believe in Oregon.  It also won in November in Michigan, Ms. Grutter having invited him to lead the fight for equality and against affirmative action there.

Linda Greenhouse of the New York Times has an account of the argument in the current case below: