Race matters: this year, the Supreme Court could dismantle affirmative action. Would it be ending an unfair practice or hurting the cause of racial equality?

It took years of court orders, bloody demonstrations, and even armed federal marshals to desegregate American schools, lunch counters, and workplaces. That may be hard to imagine these days, when few in mainstream America would defend racial segregation, which prohibited black people from using the same facilities as whites.

But desegregating the United States and integrating it--that is, erasing the invisible barriers that make it hard for minorities and whites to have truly equal opportunities--are two different things.

In 1961, President John F. Kennedy issued an executive order with what historians cite as the first use of the phrase "affirmative action," by which he meant taking active steps to offer minorities opportunities to compensate for years of discrimination. Four decades later, the country remains deeply divided over how to achieve genuine racial equity, or even simple diversity. Indeed, a debate that once struck many as black and white is now murkier than ever.

A QUESTION OF DIVERSITY

Take the case of Barbara Grutter. In 1996, at age 43, Grutter decided to close her business and go to law school. A mother of two, Grutter sent an application to the University of Michigan law school, a top-ranked institution that says it is deeply committed to having a diverse student body.

"If you look at diversity in the general sense," she says, "then I was really a quintessential diversity candidate." This may come as a surprise to affirmative action proponents, who have long taken "diversity" to mean something involving members of minority groups like blacks and Hispanics--not white, middle class women.

Grutter, who was rejected by the law school, is now part of a group of unsuccessful white applicants challenging the university's use of racial preferences in admissions. The outcome could alter or end affirmative action programs in universities across the country. In December, the Supreme Court agreed to consider the case, along with another lawsuit challenging Michigan's undergraduate admissions program on the same grounds.

The Michigan case is considered the most important affirmative action litigation since the Bakke case 25 years ago. In that groundbreaking decision, the Court endorsed the goal of student diversity in higher education as a compelling governmental interest. But it also ruled that a quota setting aside a fixed number of positions for minority applicants violated the Constitution's guarantee of equal protection. (See "The Case That Made the Case," page 11.)

Last month, the Bush administration weighed in, joining the white plaintiffs in asking the Supreme Court to reject the university's policy of giving an edge to black and Hispanic applicants. More important, the case has reopened debate over the fundamental fairness of affirmative action--not just at universities, but throughout society.

RACE: A STICKY ISSUE

If affirmative action is basically an attempt to break down barriers that kept the best schools, jobs, and professions mostly off limits to minorities, then why is it so controversial? Maybe because the practice can involve anything from actively recruiting minority applicants (and often women) to setting aside a certain number of jobs just for minorities. With a limited number of opportunities available, giving one person a leg up means shutting out someone else. Add the volatile issue of race into the mix, and you have the makings of a wrenching controversy.

"Everybody wishes that race would somehow go away in American life," says Professor Marvin Lazerson, former dean of education at the University of Pennsylvania. "It turns out it is just not going away."

For many people, the justification for affirmative action is simple. "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 the race and then say, `You're free to compete with all the others,' "said Lyndon B. Johnson, who in 1965 became the first President to really push affirmative action.

What Johnson meant was that just outlawing overt discrimination--white and black sections on buses, for example, or hiring practices that kept out minorities--was not enough to bring about real change for people who lacked the skills to compete effectively. Trying to right these historical wrongs has taken a variety of forms over the years.

RIGHTING HISTORICAL WRONGS

It began in 1961, when Kennedy signed an order directing companies with government contracts to "take affirmative action" to make sure their employees and job applicants were treated the same, regardless of race, religion, or ethnic origin. The Civil Rights Act of 1964, signed by Johnson, prohibited discrimination in employment and created government agencies that became powerful advocates for affirmative action.

By the late 1960s, President Richard M. Nixon was requiring companies working on federal projects to meet minority-hiring goals. In private industry and in government at all levels, affirmative action policies have become standard. And while there are still skirmishes, such as lawsuits over efforts by police departments to hire and promote more minority members, affirmative action has for the most part become an accepted part of life in most arenas.

But in education, where schools began using affirmative action principles in the mid-1960s, it's a different story. Admissions officers have increasingly found themselves on the defensive for their diversity practices. The complaints have come amid growing competition for slots in top academic programs.

Opponents of affirmative action in universities, who have been elated by President Bush's decision to take their side, generally say they accept the importance of making schools racially diverse. But, they argue, supporters of affirmative action are guilty of the same offense they are trying to remedy: rejecting people on the basis of race. "I didn't file the lawsuit simply because I didn't get in," Grutter says. "I filed it because I was discriminated against in the application process."

University of Michigan officials reject that assertion. Marvin Krislov, the school's vice president and general counsel, says that in order for Michigan to achieve its goal of having a diverse student body, it has to take race into account. But race, Krislov says, is just one of many factors that help determine admission, and by no means the most important one.

JUST A "SORTING MECHANISM"

In the undergraduate school, applicants are ranked on a scale of 150, with grades and test scores counting the most. Blacks and Hispanics qualify for an extra 20 points, but so do people of any color if they come from a disadvantaged background. Athletes are also given preference. Other factors, like geography, also play a role. And in any case, Krislov says, the university does not make admissions decisions purely on the numerical ranking. "I like to think of it as a sorting mechanism, really," he says.

In recent years, however, the tide has begun to turn against these kinds of racial preferences in education (see "How Others Bolster Minority Enrollment," page 12). Judges have ruled against their use in Texas, for example. In 1995, the University of California ended consideration of race and sex in admissions and hiring. The next year, California voters approved a referendum getting rid of most state-sponsored affirmative action. A similar measure was approved in Washington State in 1998.

In announcing his decision to side against Michigan in the Supreme Court case, President Bush said: "I strongly support diversity of all kinds, including racial diversity in higher education. But the method used by the University of Michigan to achieve this important goal is fundamentally flawed."

THE PROMISE OF DIVERSITY

Supporters of affirmative action also speak of the merits of diversity. Racial,preferences, they argue, are important not only to help minorities who have historically been the subject of discrimination, but also to improve the educational experience for everyone at a university.

Sarah Boot, a white senior at Michigan and president of the Michigan Student Assembly, recalls growing up in a town where "there were only five African-Americans in my high school, if that." The undergraduate part of the university is about 8 percent black, and Boot says she has learned as much from day-to-day interactions with other students as she has in class. "I have friends who are black now," she says.

One of those friends, Monique Luse, says for her, too, "diversity has been an amazing sort of addition to my undergraduate career." But Luse argues the value goes beyond her educational experience, and that making colleges truly diverse is an important step toward easing racial friction in this country.

"If there are not people of color in a university environment," she says, "there is no way to begin the conversation about how we can improve race relations."

In a sense, that is the crux of the current debate--and it is not limited to the country's campuses. Indeed, if the Supreme Court rules against Michigan, some predict, affirmative action in other parts of society might again be up for question.

Still, the debate has a special resonance at universities, where people tend to be more idealistic. Even a supporter of affirmative action like Lazerson, the University of Pennsylvania professor, acknowledges that no one really knows whether a more diverse campus necessarily offers a better education. But there's more to it than that.

"I think much of the claim for diversity is a kind of hope, more than being empirically proven," he says. "The hope is that the United States will be a society in which we are accustomed to working and living together and being tolerant of one another. And if college can't do that, it is not likely to happen elsewhere."

Affirmative Action: Do These Programs Promote Social Justice or Reverse Discrimination?

DISCUSSION QUESTIONS

* Should society extend special benefits to members of groups that suffered discrimination in the past?

* Do you agree with the University of Michigan's practice of giving preference points to applicants who are athletes?

* How would you define the term "affirmative action"?

* Critics of affirmative action say it is reverse discrimination. Do you agree?

TEACHING OBJECTIVES

To help students understand the ongoing debate over affirmative action.

CLASSROOM STRATEGIES

CRITICAL THINKING/DISCUSSION: Discuss the difference between desegregating the United States and integrating it. Explain that desegregation involves the law--making it illegal, for example, to exclude African-Americans from public schools, theaters, and restaurants. As Eric Nagourney notes, invisible boundaries still make it hard for blacks to share equal opportunities. What invisible boundaries still exist? (Equal economic opportunity?)

Examine the University of Michigan's effort to move toward equal opportunity. Note that factors, other than race, are also used to determine an applicant's admission score. For example, applicants receive points if they come from disadvantaged backgrounds. Ask why a university would make an effort to accept students who come from difficult social or economic backgrounds. (Might it be both to help persons who would not otherwise have such an opportunity and to teach the more privileged about the real world?) Why would geographic diversity matter? (Students from other places bring different ideas and experiences to the college, thus adding different flavors to the pedagogic and social stew.) Refer to the comments of Sarah Boot and Monique Luse. Ask why Luse says diversity is an addition to her undergraduate career. (Is diversity akin to taking a free course in sociology or psychology?)

Students should also understand the argument of opponents of affirmative action. Do extra points for minority applicants discriminate against majority applicants? Would a woman like Barbara Grutter, who was about 20 years older than the average applicant, add diversity to a student body?

WRITE ABOUT IT: Have students write brief essays in which they explain why colleges should--or should not--go out of their way to achieve racial and other diversities in their student bodies.

Upfront QUIZ 1

MULTIPLE CHOICE

DIRECTIONS: Circle the letter next to the correct answer.

1. Trent Lott had to resign a high-level office after making remarks seeming to favor racial segregation. Which office?

a Governor of Mississippi

b U.S. Senator from Mississippi

c U.S. Senate majority leader

d Speaker of the U.S. House of Representatives

2. The term "affirmative action" was first used to ensure racial equity in

a companies with government contracts.

b public accommodations.

c interscholastic sports.

d interstate transportation.

3. The affirmative-action case coming before the Supreme Court involves a point system for admission to

a private preparatory schools.

b a public undergraduate and law school.

c private universities.

d public accommodations.

4. Twenty-five years ago the Supreme Court upheld racial diversity but rejected the use of

a religious diversity.

b formulas guaranteeing admission of females.

c formulas guaranteeing admission of the handicapped.

d racial quotas.

5. The first major affirmative-action case to reach the Supreme Court involved a medical-school applicant named

a Brown.

b Plessy.

c Bakke.

d Ferguson.

6. What is President Bush's position on the current case? He

a supports the university.

b says he'll wait for the Supreme Court to rule.

c is remaining neutral.

d says he supports diversity, but not the plan in question.

ANSWER KEY

1. (c) U.S. Senate Majority Leader

2. (a) companies with government contracts.

3. (b) a public undergraduate and law school

4. (d) racial quotas.

5. (c) Bakke.

6. (d) says he supports racial diversity, but not the plan in question.

Making a Difference?
In the 25 years since the Bakke decision, the percentage of minorities
attending four-year colleges or universities has increased.

                                     U.S. Citizens
                                     Enrolled in     U.S. Citizens
                         All U.S.    4-year          Enrolled in
                         Citizens,   Colleges in     4-year Colleges
                         2000        1976            in 1999

Native American             7%           5%               8%
Asian/Pacific Islander      4%           2%               6%
Hispanic                   12%           3%               7%
African American           12%           9%              11%
White                      71%          87%              75%

SOURCE: U.S. CENSUS BUREAU, THE COLLEGE BOARD, CENTER FOR INDIVIDUAL
RIGHTS

Note: Table made from pie chart.

RELATED ARTICLE: The case that made the case: taking a look back at Bakke.

Long before Gratz, Hamacher, Grutter, and the University of Michigan, the big names in the affirmative action battle were Bakke and the University of California.

The California case came 25 years ago, but the arguments and the passions it raised were remarkably similar.

Allan Bakke was a 32-year-old white who applied to the medical school at the University of California at Davis. He was rejected under the school's affirmative action program--and in 1978 won a landmark Supreme Court ruling.

The Bakke decision was the grand-daddy of affirmative action cases, and probably the most important ruling on race and education since 1954 (when the Court, in Brown v. Board of Education, ruled that racial segregation in public schools was unconstitutional).

While the Court ruled in favor of Bakke, ordering him admitted, the decision was mostly a victory for proponents of affirmative action. The ruling endorsed the principles that underlie much of the current practice of affirmative action.

Where the University of California violated the Constitution, the Court ruled, was in setting aside 16 of its 100 slots exclusively for disadvantaged minority students--in other words, establishing a quota.

Yet at the same time, a majority of the Justices, who were deeply spilt over the case, approved of the notion that universities could take an applicant's race into account in order to achieve diversity. This is the issue that the Court is revisiting with the Michigan case.

Bakke, whose parents had immigrated to Minnesota from Norway, worked as an engineer before applying to the medical school in 1973 and again in 1974. When he was turned down, he sued, arguing that if the school had not set aside the slots for minorities, he would have been admitted. (Some of the minority students accepted during those years scored lower on admissions tests than Bakke did.)

The language of the opinions written by the Supreme Court Justices shows that the terms of the debate have changed little over time.

"It is not permissible to say `yes' to one person, but to say `no' to another person, only because of the color of his skin," wrote Justice John Paul Stevens, who ruled for Bakke, quoting from a debate on the Senate floor.

Justice Harry A. Blackmun, who voted against Bakke, said he looked forward to the day when affirmative action would no longer be necessary. But that day, he said, had not yet come.

"In order to get beyond racism," he wrote, "we must first take account of race. There is no other way. And in order to treat some persons equally, we must treat them differently."

Bakke has consistently refused to be interviewed over the years, saying he had no political motives when he decided to go to court. All he wanted, he said, was the medical school admission to which he believed he was entitled.

In the fall of 1978, Allan Bakke enrolled at the University of California at Davis. He graduated four years later, and is now back in Minnesota, where he is an anesthesiologist.--Eric Nagourney

RELATED ARTICLE: How others Bolster minority enrollment.

How do you make a university diverse, without explicitly giving preferences based on race? Any method has its critics, but here are two approaches:

The percentage plan. Endorsed by President Bush (it was put into effect in Texas when he was Governor), this system does not allow schools to take race into account when making admissions decisions. Instead, it guarantees university admission to the top performers in every high school. In Texas, it's the top 10 percent; in Florida, the top 20 percent; in California, the top 4 percent.

Since the guarantee applies equally to schools with white and non-white majorities, it ensures that blacks and Hispanics will make it into the universities. Critics argue that since It's easier to excel in some schools than in others, the guarantee lowers the overall quality of student admissions. It has also made admission harder for some minority students at more competitive high schools who do well--but don't make it to the top.

The watch-what-you-say plan. At independent Rice University in Houston, officials have long taken pride in the diversity of their student body. But courting minorities got harder in 1996, when a federal appeals court ruled that state universities in Texas, Louisiana, and Mississippi could take race into account only to remedy their own prior discrimination. The solution? Rice admissions officials no longer discuss race overtly. But they encourage applicants to discuss their "cultural traditions"--an invitation few minority applicants fall to understand.

ERIC NAGOURNEY is a staff editor at The New York Times.