Affirmed... for now The Supreme Court's decision made affirmative action resoundingly legal. Now comes the hard part-making it unnecessary.
By Glenn C. Loury, 6/29/2003 S A RESULT of its recent decisions in the University of Michigan affirmative action cases, the Supreme Court has at long last resolved a key dispute in America's still raging culture wars-at least for the time being. For over 30 years, critics and supporters of affirmative action have been competing for the moral high ground through lawsuits and ballot initiatives, in local, state, and federal legislatures, and before varied courts of public opinion. Up until last Monday, it looked as though the critics were getting the better of these arguments both legally and politically. Indeed, in the undergraduate case the court upheld by a 6-3 majority a lower court's finding that the methods the university uses to select its freshman classes are unconstitutional. But Justice Sandra Day O'Connor's landmark opinion for the 5-to-4 majority upholding the law school's affirmative action program is a veritable slam-dunk victory for supporters of racial preferences. The court has now declared in no uncertain terms that the Constitution's 14th Amendment, which guarantees to all persons the equal protection of our laws, does not require ''color-blind'' admissions processes at public schools. Justice O'Connor's words could hardly be more unequivocal: The court endorses the view, she wrote, ''that student body diversity is a compelling state interest that can justify using race in university admissions.'' Across the country, the decision touched off celebrations among affirmative action supporters and grumbling among its opponents, who have vowed to swing the vote their way next time by fighting for a more sympathetic Supreme Court nominee. However, three noteworthy aspects of this profoundly significant ruling suggest that the terms of the debate may have changed for good, and that a new and perhaps final era of affirmative action may be upon us. Yes, the Court has upheld affirmative action. Still, both opponents and supporters would do well to treat this decision as a wake-up call. Affirmative action isn't going away soon, but it will not last forever. The first thing to note is that the court's reasoning is pragmatic, not ideological. This is in sharp contrast to the posture of most advocates on either side of the issue. Critics of affirmative action often assert that, since our Constitution is colorblind, any distinction among persons based on race that results in differential treatment is illegal. For supporters, since race has been and continues to be a barrier to full participation in society for millions of Americans, some preference for disadvantaged minority applicants to elite universities is morally required. The Supreme Court rejects both of these positions. True, the court acknowledged that our legal tradition is hostile to racial classifications, which therefore must be subjected to the strictest judicial scrutiny. But the court has reiterated its view, developed over the last two decades, that given the history and current structure of our society, the pursuit of compelling public ends sometimes requires the use of racial classifications. ''Race-based action necessary to further a compelling governmental interest,'' states O'Connor, ''does not violate the Equal Protection Clause so long as it is narrowly tailored to further that interest.'' Thus (for the foreseeable future, anyway) disputes over affirmative action in higher education will be resolved on a case-by-case basis. A blanket legal prohibition on the practice-or, for that matter, a blanket endorsement of it-now seems out of the advocates' reach. The second striking aspect of the court's opinion is its marked deference to those leaders from business, academia, and the military who filed an unprecedented number of friend-of-the-court briefs asserting the importance of maintaining diversity in their respective domains. Such claims are extremely difficult to convincingly verify with data, and have been widely disputed in the media by opponents of affirmative action. Yet the court avoided the temptation to substitute their relatively uninformed views on such a central question of fact for the considered judgments of the people who manage these institutions on a daily basis. This deference is significant because it shows that trust in the benign institutional motive of admissions committees, personnel officers, and other key actors is essential to the legitimacy of racial affirmative action. This court has effectively issued a categorical rejection of the analogy often employed by conservatives, which holds the prototypical liberal college president to be no better than the segregationist of yesteryear. By taking them at their word, the justices have affirmed that, far from being obstructionists ''standing in the schoolhouse door,'' today's ''racial discriminators'' are trusted public servants seeking to advance important social goals under difficult circumstances. Finally, the court's ruling is significant in the degree to which it looks forward to a time when affirmative action will no longer be needed. As O'Connor noted in her opinion, the Michigan decisions come exactly 25 years after the court issued its opinions in the 1978 case University of California Regents v. Bakke. In that landmark (but ambiguous) ruling, five of the nine justices voted to uphold affirmative action, but no single rationale for this position could attract the assent of a majority. While observing that the problem of racial inequality, which loomed so large a quarter-century ago, remains a serious one today, O'Connor also stresses how much progress we have made since 1978. Speculating about the future, she declares, ''Race-conscious admissions policies must be limited in time. . . . The Court expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.'' Although the legal significance of such speculation is uncertain, the fact that this statement appears in the opinion at all should serve as a clear warning to supporters of affirmative action. We must not rest on our laurels. This recent victory may well be our last, and its benefits may be short-lived. Unless over the course of the next generation the dramatic underrepresentation of blacks and Hispanics among top academic performers is remedied, their access to selective institutions of higher education may one day be severely curtailed. It is therefore essential that we begin to make significant and sustained progress on closing the racial test-score gap. Unfortunately, it will take more than a friendly ruling from a divided Supreme Court to accomplish this daunting task. In the 1998 book ''The Black-White Test Score Gap,'' the scholars Christopher Jencks and Meredith Phillips state that ''reducing the black-white test score gap would do more to move America toward racial equality than any politically plausible alternative.'' But Jencks and Phillips make it clear that there's no easy path leading from where we are to where we want to go. The public policies they think would be most effective and easiest to implement are reducing class size and screening out academically weak teachers. But such school-based policies, even if they could be enacted, would almost certainly not be enough. As they write, ''The cognitive disparities between black and white preschool children are currently so large that it is hard to imagine how schools alone could eliminate them.'' (Half of black 3- and 4-year-old children have vocabulary scores that fall below the 20th percentile nationally.) Indeed, ''changing the way parents deal with their children,'' they write, ''may be the single most important thing we can do to improve children's cognitive skills.'' According to research findings reported in the book, even after controlling for family income, parental education, and mother's cognitive skills, differences in parenting practices between blacks and whites account for one-fifth to one-quarter of the racial gap in cognitive skills among preschool children. The practices in question include the frequency of trips to museums, whether the mother reads to the child regularly, whether materials promoting the child's knowledge of letters, numbers, colors, and shapes are present in the home, and the like. Of course, such considerations are important for all families, whatever their race. But as long as black and Hispanic youngsters are lagging behind others, our families and communities must accept our share of the responsibility to address this situation. We have essentially one generation to get this done. There's not a moment to waste. Glenn C. Loury is a professor of economics and director of the Institute on Race and Social Division at Boston University. His most recent book is ''The Anatomy of Racial Inequality'' (Harvard University Press).
