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“The use of race, in and of itself, to choose students simply achieves a student body that looks different. Such a criterion is no more rational on its own terms than would be choices based upon the physical size or blood type of applicants.” Hopwood v. Texas , U.S. Court of Appeals for the 5th Circuit, 1996 That’s right — race is no more important than blood type. That’s the reasoning that a federal appeals court used not too long ago to spike an affirmative action program in higher education. Now that the Supreme Court is considering the same issue for the first time in decades, the justices should keep the Hopwood quotation in mind as they go through their arguments and deliberations. It’s a stunning shorthand for the views of those who oppose affirmative action. And when they write their own opinions, the justices are, in the end, going to have to agree with it or make clear why they don’t. In the two related cases that the Supreme Court on Dec. 2 accepted for review — Gratz v. Bollinger and Grutter v. Bollinger — the issue is whether the University of Michigan can use race as a factor when deciding whom to admit to its undergraduate and law school programs. The two programs use different criteria for how they consider race — the law school uses a somewhat more individualized method than the undergraduate school. But the key issue is identical. In both cases, the university claims that having a diverse student body is a core component of its educational mission. A prohibition on considering race, according to the university, would fundamentally alter the character of the institution and what it aims to accomplish. “It is obvious that race matters to a great many issues that the Law School considers central to its chosen pedagogical mission,” the university wrote in its Grutter brief. (Emphasis in the original.) Opponents — and the plaintiffs in the case — claim that the university’s admissions standards violate the equal protection clause of the Constitution’s 14th Amendment, on the basis that diversity is not a “compelling” enough purpose to overcome America’s reluctance to legalize distinctions based on race. At least, that’s the dispute in narrow legal terms. But there’s more going on here than the parties can admit. Though the attorneys are left battling about diversity, the deeper issue on trial is how to deal with the legacy of America’s racist past, and its effect on America’s present and future. The reason that the parties can’t talk about this directly is that the Supreme Court has, unwisely, taken the issue off the table. In Regents of the University of California v. Bakke (1978) — the last case in which the Supreme Court considered affirmative action in higher education — Justice Lewis Powell Jr. wrote in his pivotal concurrence that generalized “societal discrimination” is “an amorphous concept of injury” that cannot serve as a basis for affirmative action programs. To support such programs, Powell wrote, institutions must be trying to remedy their own discrimination, or they need to claim that something akin to diversity is part of their educational mission. And so, in the Michigan cases, the university is defending its programs on diversity grounds. It’s a strong argument. But it makes sense only when viewed against the backdrop of the ongoing force of America’s discriminatory past. The university claims that diversity is necessary, in essence, because its students need to learn how to function in America’s increasingly multicultural society. In the law school context, that means learning to listen to different sorts of clients, advising them about changing legal issues, and working with different sorts of colleagues. That’s all true and valid. Even the federal District Court that ruled against the law school’s affirmative action program wrote, “The court does not doubt that racial diversity in the law school population may provide these educational and societal benefits. Nor are these benefits disputed by the plaintiffs in this case. Clearly the benefits are important and laudable.” But why are they important? The only answer that makes sense is one that, ultimately, makes the position of affirmative action opponents untenable. “Race matters,” the university correctly wrote to the Supreme Court. And the unspoken reason that it matters in education is that it matters everywhere else. Put another way, the reason that diversity matters in the first place is exactly the issue that Powell took off the table in Bakke — the continuing effects of pervasive and societywide discrimination, intentional or not. If people really had backgrounds, memories, and experiences that were no more clustered around race than around blood type, there would be no good reason to nurture racial diversity in order to educate students about life in a multicultural society. Such a society would not be multicultural in the first place. And if, and only if, such a utopia ever came into being, the quote from Hopwood at the top of this article would make sense. But back here in the real world, the quotation turns into a parody of itself. In America, we have treated race — tragically and epically — as far more significant than blood type. Think of it this way. One of the arguments that the university makes in support of its affirmative action programs is that, without them, higher education would become effectively resegregated by race. It writes: “A blanket prohibition on the consideration of race in admissions for diversity purposes would cut the representation of African-American students at selective universities by more than two thirds, and at accredited law schools by more than three fourths.” Perhaps not surprisingly, the programs’ opponents disagree — vehemently, in fact. They bristle that, in states that prohibit affirmative action, “Not only have selective institutions in those states not ‘resegregated,’ they are among the most racially diverse campuses in the country.” That’s nice. But it also misses the big point. The campuses are diverse because of new state-instituted programs deliberately intended to restore racial balance after the elimination of affirmative action. Which is to say, these new programs succeed in producing multiracial college campuses because they are evasions of the bans on affirmative action. And, worse, they work only because of the continuing de facto segregation of high school education. From a practical perspective, for diversity to continue in higher education if the Supreme Court prohibits affirmative action programs, three things would need to take place. First, every — or nearly every — state would need to enact into law similar evasions. Second, the Supreme Court would need to uphold their constitutionality. And third, private universities (as opposed to state university systems) would need to come up with their own successful evasions. None of this has yet happened. More than that, it’s vital to note what the opponents to affirmative action do not claim. They do not claim that it would be good if higher education in America became segregated. They do not even claim that it would be neutral — that they would shrug their shoulders at it. Rather, they are silent on the issue. One would guess (hope?) that, if they answered honestly, they would indeed think it would be a bad thing if that were to happen. ANYONE FOR RESEGREGATION? And that’s where they give away the game. Why? Because, in America, segregated schools — de facto or de jure — have a sordid and evil history. It’s a history that we still have not overcome. If they come back, it would not be acceptable. Partly it would not be acceptable because, given America’s racist past, even an accidental return to that situation would raise fears. And partly it would not be acceptable because the return to that state of affairs would not be mere chance. To give just one example of how new segregation of schools would not be a coincidence, consider an argument made in a brief to the Supreme Court by the NAACP Legal Defense Fund. Michigan’s undergraduate college, in addition to giving some preference to racial minorities, also gives some preference to the children of alumni. But “under-represented minority applicants are — in part because of the discrimination that has persisted at the University — less likely to have alumni parents or relatives, and are disproportionately first-generation applicants to college,” according to the Legal Defense Fund. Which is to say, the ripples of the university’s past discrimination still tangibly hurt minorities today. If, on the other hand, a world suddenly emerged in which only people with AB blood studied law, we would be witnessing a statistical improbability in the extreme, but not the return of rancid wine in new skins. So like it or not, again, race matters. As Columbia University historian Eric Foner wrote in a report at an earlier stage of the Michigan litigation, “In a country whose economic growth and territorial expansion required appropriating the land of one nonwhite group (Native Americans), exploiting the labor of another (slaves), and annexing much of a nation defined as nonwhite (Mexico), it was inevitable that nationhood would acquire a powerful racial dimension.” Pretending that it doesn’t — trying to impose color-blindness on a university system that serves a color-conscious society — only makes the hurt last longer. We might all hope for a world where race is no more important than any other physical attribute. But we’re not there yet. To quote President Lyndon Johnson, “You do not wipe away the scars of centuries by saying, ‘Now you are free to go where you want, do as you desire, and choose the leaders you please.’ You do not take a person who, for years, has been hobbled by chains and liberate him, bring him up to the starting line of a race and then say, ‘You are free to compete with all the others,’ and still believe you have been completely fair.” He wasn’t talking about blood type. Evan P. Schultz is associate opinion editor at Legal Times. He can be reached at [email protected].

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