Affirmative action’s days are few

When Justice Lewis Powell agreed in part with each wing of the Supreme Court in the famous Bakke decision, his lone voice became, in effect, the "majority" opinion regarding affirmative action. Such a bizarre conclusion should have alerted Americans that this was no ordinary political issue.

If it's possible, the story of affirmative action continues to get more curious. Two recent federal court decisions centering on admissions policies at the University of Michigan flatly seem to contradict one another. Last December, one judge determined that the school's undergraduate admission policy does not violate the Constitution (Gratz v. Bollinger), but last week, another determined the policy for the law school does (Grutter v. Bollinger). Odd, because both policies seek the rather narrow goal of increasing the racial and ethnic diversity of the student body. While the two policies do have somewhat different procedures to acknowledge race, it is that they share the same underlying rationale that leads me to say this confidently: The days of affirmative action are numbered.

Should either or both of these cases reach the U.S. Supreme Court - and most observers seem to think they will - expect a broad ruling striking down the use of race in college admissions entirely. Since Bakke, a series of cases have set the stage for such a decision. Most notably, the Court in Adarand v. Pena (1995) concluded that state policies that take race into account must be narrowly designed and further a compelling state interest; in other words, such programs must be examined at the highest level of judicial scrutiny. Only the most optimistic supporter of affirmative action would believe that the current Supreme Court would determine that "racial and ethnic diversity" meets that stringent standard.

I am tempted to say our attempts to achieve racial equality through public policy have become embarrassingly narrow, but the variety of approaches being tried on smaller scales belies that cynicism. Following the passage of Proposition 209 in California in 1996, outreach programs sprung up at numerous urban high schools and junior high schools that seek to prepare disadvantaged students - of whatever race - to compete equally in a world that disfavors them. It is much too early to assess the success of such programs, though the attempt alone is sufficient to dismiss the apocalyptic cries of a return to Jim Crow.

Most white Americans care deeply that all individuals are afforded a fair chance and an equal opportunity to rise or fall on his or her own abilities and effort. In fact, it is that very commitment to equality and individualism that informs the visceral hatred that so many of them have toward race-based affirmative action programs.

The legacy of affirmative action is unarguably mixed. One positive effect that may be easy to overlook is that it has forced Americans to think more deeply about what equality means. Many on the left will surely lament that in the end, the conservative creed won the argument. But even within this framework there remains considerable opportunity to improve the lives of those who are disadvantaged. Policies that violate our core principles - like the ones at the University of Michigan - should be left behind. Efforts to ensure racial equality, however, should not.

William E. Cunion II is a visiting assistant professor in the Department of Political Science. Contact him @ cunion@oak.cats.ohiou.edu