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My introduction to the constitutional dimensions of affirmative action was a lecture by Justice William O. Douglas. I was an audience of one. It was 1974, shortly after the Supreme Court had mooted the first case on affirmative action in college admissions, DeFunis v. Odegaard. Marco DeFunis Jr., initially rejected by the University of Washington School of Law, argued that black applicants with lower scores had been admitted in violation of the 14th Amendment’s equal protection clause. By the time his case reached the high court, DeFunis had been admitted to the law school by order of a state judge, had seen that order reversed by the state supreme court, and was nonetheless in his third year. Accordingly, the Supreme Court, by a 5-4 vote, mooted his case. I met Justice Douglas in a New York dentist’s office. The dentist introduced me as someone who wrote on the law, but Douglas clearly had never heard of me. However, he was so angry at his brethren for not deciding an issue that he was sure would recur that, as we were waiting, he forcefully unburdened himself on the arguments in his DeFunis dissent. “The Equal Protection Clause,” he wrote in his dissent, “commands the elimination of racial barriers — not their creation in order to satisfy our theory as to how society ought to be organized.” Instead of granting racial preferences on a collective basis, he told me, individual applicants could constitutionally be given preference. As he wrote in his dissent, “A black applicant who pulled himself out of the ghetto into a junior college may thereby demonstrate a level of motivation, perseverance, and ability that would lead a fair-minded admissions committee to conclude that he shows more promise for law study than the son of a rich alumnus who achieved better grades at Harvard.” In our conversation and in his dissent, Douglas emphasized, “Such a policy would not be limited to blacks, or Chicanos, or Filipinos, or American Indians… . [A] poor Appalachian white … or some other American whose lineage is so diverse as to defy ethnic labels may demonstrate similar potential and thus be accorded favorable consideration.” WRONG DIRECTION Douglas, having suffered a stroke, was involuntarily off the Court by 1978 when the decision in Regents of University of California v. Bakke came down. In his famous pivotal opinion, Justice Lewis Powell Jr. ruled that race could be one factor, though not the determining factor, in college admissions. Since then, many colleges and universities, particularly the more prestigious, have so selectively interpreted Powell’s language as to distort it. Powell said that “the diversity that furthers a compelling state interest … encompasses a far broader array of qualifications and characteristics of which racial or ethnic origin is but a single, though important, element.” Additionally, he wrote, “The individual is entitled to judicial protection against classification based on his racial or ethnic background because such distinctions impinge upon personal rights,” rather than because the individual is a member of a particular group. Yet for years, a number of colleges ran separate admissions committees for black and white applicants. The courts now reject that device as a quota system. But in one much-publicized University of Michigan case, Gatz v. Bollinger, U.S. District Judge Patrick Duggan ruled late last year that a policy of giving black and Hispanic undergraduate applicants a 20-point bonus on a 150-point scale is perfectly legal. I very much doubt that Justice Powell — who demanded strict scrutiny for affirmative action — would have signed on to so blatant a form of preference. Another University of Michigan case, Grutter v. Bollinger, got a different result. U.S. District Judge Bernard Friedman this year struck down the university’s law school admissions policy as unconstitutional because it lacked a “race neutral” process. The two cases are expected to be consolidated before the 6th U.S. Circuit Court of Appeals. Jeffrey Lehman, the University of Michigan’s law school dean, called Friedman’s ruling “squarely inconsistent with Bakke.” Well, in a 1998 case involving Boston’s public schools, Wessman v. Gittens, the 1st Circuit examined what Powell actually said in Bakke: “Although Justice Powell endorsed diversity as potentially comprising a compelling interest, he warned that a proper admissions policy would be such that if an applicant ‘loses out’ to another candidate, he will not be foreclosed from all consideration for that seat simply because he was not the right color or had the wrong surname.” The University of Michigan’s law school policy, on the other hand, was “practically indistinguishable from a quota system,” wrote Judge Friedman. REAL DIVERSITY Although Justice Douglas’ DeFunis dissent is seldom mentioned in the chronic debate about affirmative action, his preference for judging applicants individually is being followed in those parts of the country where racial preference policies have been struck down by law (California’s Proposition 209 in 1996) or by court decision (the 5th Circuit’s key 1996 ruling in Hopwood v. Texas). Because college admissions directors in California and Texas could no longer ensure diversity by sitting in their offices and fiddling with the criteria, administrators and professors actually went out into the middle and high schools to find and nurture students who could, in time, be admitted without racial preferences. And in both states, professors were enlisted to train teachers in the lower schools to be more effective and to raise curriculum standards. As a result, disadvantaged students — to use the administrative euphemism — of various races and ethnic backgrounds were reached. As James Traub noted in a May 1999 article in The New York Times Magazine, “Academics and administrators throughout the system” have admitted that the California universities “would never have shouldered this burden [of getting involved in the secondary schools] had it not been for the elimination of affirmative action.” In Texas, William Cunningham, chancellor of the University of Texas system, described the impact of Hopwood thus: “Admissions teams went out with very aggressive programs to interview a larger number of applicants than they have in the past, and we have not had to reduce our admissions standards.” The individual stories not only of black and Hispanic students, but also of rural white students, came into consideration as the admissions teams learned about the obstacles that individual applicants had overcome. In a more sweeping move, Texas decided that the top 10 percent of every high school graduating class would automatically be admitted to any school within the system. Since the quality of instruction varies greatly among high schools, many of the students who chose the University of Texas — the flagship of the system — had to be placed in smaller classes, where they received intensive remedial instruction and seminars in study skills. THOSE LEFT BEHIND But what of the remaining 90 percent of the students in the inferior high schools? Throughout the debate on educational affirmative action, the focus has been on university admissions with far less concern about the millions who will never even think of applying to college. In July 1998, the Public Broadcasting System presented a dialogue on race moderated by President Bill Clinton. At one point, he asked journalist Richard Rodriguez whether, if Rodriguez were president of a university, he would want a “racially diverse” faculty and student body. The president’s facial expression indicated the answer he expected. But Rodriguez surprised him: “I think you would start at the bottom of the social ladder. You would start at the first grade rather than at graduate school to decide which ones of us get into law school. You would make sure America has a system of education that saved children in the first grade — because we lose them there.” Dr. Kenneth Clark, whose research (with his wife, Mamie) about the effects of segregated schools on black children was a factor in Brown v. Board of Education, told me years after: “By the end of the second grade, in too many schools, what many black children learn is that they are dumb. And they are lost.” There are more segregated public schools today than in 1954 when Brown was decided. Soon, quite possibly next term, the Supreme Court will be hearing an affirmative action case that has nothing to do with those lost students. Before the Court will be whether diversity in college is a sufficiently compelling interest to trump equal protection under the laws. As my next column will show, the reality of “diversity” at elite colleges is that it’s often a source of division, not inclusion, among students. Furthermore, no matter what Justice Sandra Day O’Connor, the likely swing vote, decides, the Court will not be considering the multi-racial identities of more and more Americans. To Be Continued: Will there be a return to the “one drop of blood” standard? Nat Hentoff is a longtime columnist for the Village Voice, a syndicated columnist for United Media/NEA, and a columnist for Editor & Publisher magazine. He has written numerous books, including Living the Bill of Rights (1998) and Speaking Freely (1997). “Due Process.”

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