Affirmative action: still a useful social tool . Leland Ware.

Full Text: COPYRIGHT 2003 American Lawyer Media L.P.

On Dec. 2, the U.S. Supreme Court announced its decision to hear two cases involving the University of Michigan's admissions policies. These cases will decide the fate of affirmative action in higher education.

Supreme Court rulings during the past decade suggest that a decision to invalidate affirmative action is likely. If this happens, it would be a grave mistake.

Affirmative action provokes an emotional and often polarizing debate. Using coded phrases such as "quotas" and "preferential treatment," opponents proceed from a flawed but widely held assumption that affirmative action necessarily means the displacement of qualified whites with less-qualified minorities.

Affirmative action supporters consider the conditions resulting from discriminatory practices; we believe that affirmative action promotes equality and advances the unfinished process of desegregation.

In Board of Regents of the University of California v. Bakke, the Court, by a 5-4 majority, held that affirmative action policies did not violate the 14th Amendment. There was no majority decision on the question of whether to apply "strict scrutiny" or a less rigorous level of review. But Justice Lewis Powell, concurring with the result, wrote in a separate opinion that student body diversity would have been a "compelling justification" under strict scrutiny, had that standard been applied.

The divisions within the court continued until City of Richmond v. Croson (1989), when the court held that strict scrutiny applied to affirmative action plans developed by state and local governments.

After Bakke, almost all colleges and universities embraced the diversity rationale as the justification for affirmative action policies. The critical question now is whether the Court will adhere to the diversity rationale, invalidate affirmative action altogether or stake out some middle ground.

Affirmative action policies allow decision-makers to take race-conscious actions aimed at reducing the disparities resulting from decades of racial exclusion. In higher education, this remedial rationale has been all but subsumed by another justification: the recognition of the value of diversity in academic settings.

Underlying this rationale is an implicit recognition of the need to include racial minorities who were excluded by decades of discriminatory practices.

College admissions is a complex process that goes beyond looking for the highest grades and test scores. The actual question is: Which applicants among several qualified candidates should be admitted?

White students with lower grades and test scores than Barbara Grutter were admitted to the University of Michigan the year she applied, but black students were statistically more likely to be admitted than whites with similar test scores and grade point averages. Race was a factor in the process, but a given white applicant could never prove that he or she would have been admitted in the absence of affirmative action policies. There are too many other considerations and qualified applicants involved.

Let Reason Reign

The discourse on affirmative action has evolved into an emotionally charged political debate. Much of the rhetoric appeals to sentiment rather than reason. This is reflected in the invocation of "colorblindness" as an argument against affirmative action, which, while superficially appealing, does not withstand analysis. The theory would treat black and white Americans as if they were similarly situated when, in reality, they are not.

It also discounts the history and context of race relations in America. Colorblindness is a worthy goal, but the adoption of this approach now will not promote equality.

There are countless race-based disparities, rooted in segregation, that continue today. The 2000 census confirmed that America is becoming more racially diverse, but the nation's inner cities are more segregated now than they were 50 years ago.

Studies regularly conducted by the U.S. Department of Housing and Urban Development, academic researchers and private organizations show that today's residential segregation stems from decades of official segregation and the persistence of discriminatory practices (rather than individual choices). Residential segregation is also the principal cause of continuing segregation in urban schools.

Race consciousness was imposed when the high court decided Plessy v. Ferguson in 1896. But segregation is not just part of our remote history; it continued within our own lifetimes. I can still recall seeing the "whites only" signs that symbolized the racial order of my childhood in the South, where I grew up during the height of the Civil Rights movement.

Conditions are different now, but America is still a long way from rectifying the problems caused by those mistakes. As one whose career has been aided by affirmative action policies, I can only speculate what I might have achieved without it; I know what segregation meant for my parents and others in their generation.

For purposes of strict scrutiny, there is nothing more compelling than broadening educational opportunities for African-Americans and other minorities who are still burdened by the vestiges of segregation. Affirmative action is a legitimate tool for accomplishing that goal. The call to end it is still too early. The demand for colorblindness is a century too late.

The author is the Louis L. Redding Professor for the Study of Law and Public Policy at the University of Delaware. He teaches civil rights law and has written numerous articles on the subject.       Article A97394074