The country will be one step closer to a denouement on affirmative action on December 6. That day, the University of Michigan will take its battalion of lawyers and head for the Sixth Circuit Court of Appeals in Cincinnati in one of the most closely watched cases in the country. There it will explain, yet again, why the racial double standard that it employs in its admissions is legal.
The university's hope is not unfounded. Of the nine judges that will be hearing the case, six are liberal, many of them with an established history of pro-preference rulings. Two of them strongly endorsed the Memphis Police Department's race-conscious promotion policies in 1994. Subsequently, when the full court overturned their ruling, the judges responded with a scathing dissent. "It is an undeniable fact that this nation has yet to fully confront its racist history," they proclaimed. "Until this preliminary hurdle is surmounted, the rejection of race-conscious remedies, under the guise of promoting color-blind justice, simply maintains a status quo premised upon the subordination of minorities."
These remarks by the white justices presuppose that blacks want racial preferences. Blacks are, after all, the main beneficiaries of such programs. And their leaders, such as Revs. Jesse Jackson and Al Sharpton, have turned the shakedown of private companies in the name of racial set-asides into a lucrative cottage industry.
But black feelings about racial preferences are far more complicated than their self-appointed promoters admit. This was eloquently -- and quite accidentally -- demonstrated by one of the nation's most distinguished black historians, John Hope Franklin, which helped derail the Michigan law school case in District Court last year (although the university won the case against its undergraduate program).
Franklin, who was handpicked by President Clinton to head his Commission on Racial Relations, was one of the many star witnesses called to the stand to help Michigan's law school defend what is effectively a two-track admission system. Analyses of the school's admission data show that the relative odds of acceptance for black candidates, when averaged over six years, are 234.5 times better than those of whites with the same GPA and LSAT scores. This means that Michigan presumptively admits all but the worst black candidates and presumptively rejects all but the best white candidates.
Franklin grew up in the Jim Crow South and is an ardent supporter of affirmative action programs. Thus, in the university's calculation, he was ideally suited to help it establish not just that such blatant disparity is justified but that those who oppose it are closet segregationists.
Franklin did, indeed, hold the court spellbound with harrowing tales of growing up black in a racist America. But things took a surprising turn when he was cross-examined by the plaintiff's attorney, Larry Purdy.
Purdy: You oppose using different qualification to permit athletes to come into a school from others that are non-athletes, correct?
Purdy: You oppose using different qualification for legacies, you don't think they should have a lower qualification to come to their school?
Franklin: I believe in using standards that are standards.
Purdy: You do not support the admission of less qualified minority applicants over more qualified Asian or white applicants?
Franklin: That's right.
In other words, giving minority students a little leg up when they are academically equal to other candidates is one thing, but selectively lowering standards to satisfy a tacit quota is quite another. Michigan's 30-plus lawyers could not persuade Franklin to take back the implication of his remarks. Indeed, as the plaintiffs argued, this is against the ruling precedent in this litigation, University of California vs. Bakke in 1978, which allows universities to use race as a, but not the, factor in admissions.
Franklin's concurrence with this reading of Bakke constituted a remarkable rebuke of Michigan's admission system. "It was the turning point in the case," remembers the Center for Individual Rights' Terry Pell, who represented the defendant, Barbara Grutter. District Court Judge Bernard A. Friedman, in ruling against Michigan, noted as much. "Professor Franklin believes that the abolishment of affirmative action at universities is a step toward resegregation," Friedman wrote. "However he also expressed the belief that academic standards should not be lowered for minority students and all students should be judged on their individual merits."
Franklin's remarks caught the university by surprise because it relied on a simplistic caricature of his views -- ignoring its own preachings on the dangers of stereotyping. But it may have avoided this if, instead of looking for ever more creative justifications for its admissions policies, it had actually paid attention to what American blacks have been repeatedly saying in surveys. Indeed, blacks go even further in repudiating Michigan-style double standards than Franklin.
A joint Washington Post/Harvard University/Kaiser Family Foundation national poll this summer found that 86 percent of blacks do not believe that race or ethnicity should "be a factor when deciding who is hired, promoted or admitted to college." These results parallel a Zogby survey of university students last year. About 77 percent of all students disagreed that "schools should give minority students preference in the admissions process." Whites opposed this by 79.5 percent, blacks by 51.9 percent, Hispanics by 71.4 percent, and Asians by 78.1 percent. Nor did these responses vary much with the wording of the question. "Students disagree with current trends in college," Zogby concluded.
Michigan did its level best to persuade Judge Friedman otherwise. It packed his court with minority students who hissed at every suggestion that privileging race over academic success in determining admissions was unfair. But it is. The U.S. Constitution's equal protection guarantee says so. The 1964 Civil Rights Act's prohibition against racial discrimination says so. The American people's innate sense of justice says so. It only remains to be seen if the country's higher courts will say so as well.