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From Bakke to Grutter: the Supreme Court and the struggle over affirmative action in the era of globalization.

Introduction:

The Civil Rights Act of 1964 has been heralded as one of the most important pieces of legislation geared toward bringing about full equality for blacks in America. It made it unlawful to discriminate or segregate persons on the basis of race and color. It is a biproduct of the Supreme Court ruling in the Brown V. Board of Education of Topeka, Kansas, on May 17, 1991 declaring null and void segregation in public facilities. It should be noted that this was a case in which the Supreme Court of the United States reversed its earlier stand in its decision in the Plessy V. Ferguson case in 1896. In this case, the Jim Crow laws of "separate but equal won constitutional approval with the court ruling that "equal protection" of the laws clause as provided by the Fourteenth Amendment did not prevent state-enforced separation of the races.

The passage of the Civil Rights Act in 1964 did not bring about significant relative equality among the races, nor did it significantly eliminate discrimination against blacks; guarantee equality of opportunity for blacks in pursuit of a utopian concept of "color blind" society.

Hence, the government relied on affirmative action as an equalization criterion. It is a series of measures designed to correct past discrimination and unequal treatment of blacks and other minorities. These measures also have goals and timetable requirement attached to them. It calls for special consideration on the part of employers in recruitment, training and promotion of minorities--Blacks, Women and Hispanics. Members of groups not protected by this instrument of social policy have complained of inequality. They have demanded attention, as well as redress of their grievance. They think they have been deprived of equal opportunity. Many also worry about prospects of what they call "compensatory or reverse discrimination"

But, the drive by government to establish equal employment opportunity in no way discriminates because it conformed to government's original goal not to institute a program designed or operated to offer special privileges to any one group of persons because of their race, sex, religion, ethnicity or nationality.

Affirmative action programs, which are products of public bureaucracies, were required to measure progress by virtue of the number of blacks and other minorities hired, employed and promoted. The non-beneficiaries of the affirmative action are nonetheless, willing philosophically to see justice done; they resist all attempts to implement the program on the rationale that it denies them the opportunity to advance. The consequence has been the polarization of the races in public institutions.

In this global village, where the cars we drive contain parts built in other parts of the world; world-wide web provides us with information superhighway that creates a virtual address where economic, political, social and cultural exchanges occur outside the limitations of time and space, affirmative action means many things to different people.

The technological, economic and cultural dimensions of globalization drive economic integration as well as enable companies based in one country to operate around the globe. This brings their products and services to consumers regardless of cultural differentiation. As cultural exchanges take place, we tend to gain greater appreciation of multiculturalism and diversity in both the work place and our educational institutions.

In order to cope with growing global challenge: global terrorism, drug and currency trafficking, labor and refugee migration, outsourcing and overseas business ventures, American colleges and universities have begun to pay special attention to strengthening curricula in social studies and languages to provide students the opportunity to develop into global citizens. Also, students will be enabled to acquire knowledge of international relations, foreign language competency, understanding of inter-cultural values and techniques in conflict management. Students will also acquire knowledge, skills and dispositions to become change agents in the diverse world. As a result, U.S. businesses and universities have become committed to "diversity," as a concept which has redefined their basic rules of employment, training, promotion and admission.

Hence, in search for remedies, the disenchanted parties tuna from both the executive branch and the legislature to the courts. This paper examines select landmark cases dealing with affirmative action from Bakke in the 1970s to the Grutter case of 2003, in order to determine (a) the evolution of the affirmative action policy; (b) The standards laid down by the courts for designing and implementing the program (c) How contemporary bureaucracies and Colleges and Universities are coping with affirmative action challenges. (d) How globalization has affected affirmative action policy, with respect to new realities and challenges (e) Examination and critique of major affirmative action cases and (f) the future of affirmative action policy after the Grutter case of 2003.

Regends of the University of California v. Bakke (1978)

1978 saw a heated courtroom drama to undermine affirmative action laws. Allen Bakke, an engineer and antagonist of the policy had applied for admission into the University Of California Davis Medical School for two consecutive years and was denied admission while selected black students alleged to have accumulated lower test scores were admitted under a special admissions program. Bakke charged that he was excluded from the admission pool because of his race, and that his fights under the Equal Protection Clause had been violated.

The university of California while not denying that racial elements featured in this evaluation criteria for admission defended its practice on the argument that its racial classification was "benign" in the sense that it intended to enhance the position of minorities and not to hinder them. As Thomas Dye observed, The University's special program was designed to offset the traditional shortage of minorities in medical school and medical professions; counter the effects of past discrimination on minority groups; increase the pool of minority physicians who will work in underserved (rural) communities, and obtain the educational benefits that flow from and ethnically diverse student body.

In rendering majority opinion, the court ruled that under certain circumstances, race and ethnicity can be used as criteria of admission without violating the Equal Protection Clause. But, it also maintained that under no circumstance should an institution use criteria based on exclusivity of other races as a legitimate policy as was the instance in the Bakke case because "the guarantee of equal protection could not mean one thing when applied to one individual and something else when applied to another. If both are not accorded the same protection, then it is not equal"

While ordering the admission of Bakke into medical school as remedy, and the eventual dismantling of the special admissions package adopted by the University, it recommended that it consider the admissions program developed at Harvard University. The Harvard admission program did not set numerical quotas nor adopt exclusivity criteria, but factor into its admission, ethnic and racial elements as only part of its admission criteria. This case was some how inconclusive because it reflected some ambivalence on the part of justices in that on one hand, they allowed for ethnic and race-based remedy while on the other hand, they were opposed to race-based quota. For the fact that this was not a clear-cut victory for both the proponents and opponents of affirmative action policy, the contest was subject to further legal challenges, using other pertinent cases to test its legal validity. The Richmond case eventually fit this profile.

City of Richmond V. J. A. Croson Co. (1989)

The Supreme Court rendered judgment on Affirmative Action case in the "Richmond case" on January 23, 1989. It voted 6 to 3 against a Richmond Virginia construction-contracting program.

This program called for a 30% of any construction contract in the city of Richmond to be awarded to minority businesses unless certain conditions prevailed, among which was when no minority company was available to perform the task. Under the later, a waiver might be appropriate. "The minority set aside programs were also implemented to help eliminate discrimination in the construction industry and bring minority firms, which had been systematically excluded from the industry into the mainstream."

The Richmond City Council had instituted a Minority Utilization Plan that was adopted on April 11, 1983. The plan provided that prime contractors who were awarded city construction contracts should subcontract them to one or more minority businesses. According to the plan, minority businesses were "those business enterprises that were at least 51% black owned. Hence, in its preamble, the document declared that the plan was "remedial in nature and was enacted for the purpose of promoting wider participation by minority business enterprises in the construction of public projects."

Croson, a prime contractor of the City of Richmond had applied for a waiver of the 30% set-aside, claiming that continental, a minority-owned company that submitted a bid for subcontracting was not qualified to effectively carry out the contract, and that consequent minority businesses contracted had failed to respond timely. Upon rejection of the waiver request submitted by Croson on the basis of the reasons expressed above, by the City of Richmond, the later sued in the Federal District Court of Virginia. The plaintiff argued that the Richmond ordinance was unconstitutional. Later, the Court upheld the legality of the City Plan and sided with the defendant.

The court found that statistical evidence that was submitted by the City of Richmond in its defense of Affirmative action overwhelmingly proved that low minority participation in City contracts was a result of past discrimination. On remand, the Federal district court's ruling in favor of the city of Richmond was overturned in favor of Croson. Thus, the court of appeals struck down the Richmond set-aside program as a violation of the Equal Protection Clause of the Fourteenth Amendment

Prior to it's ruling, the appeals court observed that even if the city demonstrated a compelling interest in its use of racial quota, the 30% set aside was arbitrary. The lingering fight over affirmative action did not stop in the steps of the courtroom. It eventually became a political issue, which ultimately was exploited by a number of congressional political campaigns in two Southern States, namely North Carolina and Louisiana respectively.

Among those standing out are the campaigns in the 1991 race for the United States Senate seat in North Carolina between Harvey B. Gantt- (D) and Jesse A. Helms-(R); and the November 1991 elections between Rep. David Duke-(R) and James Edwards- (D) in the Louisiana seat for Governor. The two elections are of great significance in U.S. electoral history because of their critical nature. Operationally, the elections are termed "critical" because they share a number of common characteristics. According to Robert Weissberg these elections could be termed critical because they are perceived to indicate a sharp change in the prevailing pattern of party loyalty among voters of various groups; had the potential of unleashing long-term policy impacts and implications; had the capacity to greatly alter the general policy direction of government; they heightened controversy; were decisive and increased voter turnout.

Weber v. Kaiser Aluminum and Steel Corporation and United Steel Workers Union (1979)

The Weber case ruling by the Supreme Court made some partial headway in resolving the problem, which Bakke case never completely kept to rest. The Kaiser Aluminum was a Louisiana plant in a geographic jurisdiction in which about 39% of the local workforce was black. In the plant itself, 15% of the employees were black, but only 2% were represented in the "skilled craft" worker pool. The plaintiff, Brian Weber, a white lab technician with more seniority than two black applicants went to court against both the Union and the Company, claiming reverse discrimination.

The Supreme Court ruled in favor of the Affirmative Action program, on the ground that Title VII of the Civil Rights Act of 1964 was passed for the same purpose of improving the economic rights of blacks. Thus, the court recognized that even private sector bureaucracies on the basis of narrowly tailored and compelling public interest could voluntarily institute training and promotion programs fashioned to improve the employment skills of disadvantage groups.

United States V. Paradise (1987)

In 1995, the Supreme Court established the "Strict Scrutiny" test or (doctrine standard. This means, that race-driven actions by federal, state and local governments could be applied in a disparate fashion with respect to racial or ethnic groups, as long as it was necessary to remedy past established discrimination, or to further clearly identifiable legitimate and compelling state interest (objective). But, it must be "narrowly tailored" in order not to affect the rights of persons adversely.

In fact, the "strict scrutiny" standard was applied by the Supreme Court in United States V. Paradise (1987) regarding the use of affirmative action to remedy past discrimination. In a 5-to-4 decision (majority), the court upheld a rigid 50% African American quota system for promotions in the Alabama Department of Public Safety. The plaintiffs had clearly shown with adequate documentation that black employees in the Alabama agency had been historically excluded from attaining the ranks of the state trooper until 1972 and denied promotions beyond the rank of corporal prior to 1984. In the opinion of the court, the long history of racial discrimination in the Alabama law enforcement bureaucracy warranted upholding a numerical quota system.

In its reasoning, the Supreme Court noted that whatever burdens such remedy may have imposed on innocent parties were far outweighed by the need to correct the effects of past discrimination in the Alabama law enforcement agency.

Barbara Grutter V. Lee Bollinger et al. (1993)--The Law School Case

Barbara Grutter, a white Michigan resident had applied to the University of Michigan Law School in 1966. Although she had a 3.8 GPA and 161 LSAT score, she was placed on a waiting list, and latter denied admission. In December 1997, she brought a law suit against the University of Michigan. In the suit, the plaintiffs accused the Law School of discrimination, and prayed the court to grant her relief on the basis of the following allegations against the University of Michigan:

(a) She was discriminated against on the basis of race, in violation of the Fourteenth Amendment and Title VI of the Civil Rights Act of 1964.

(b) The law school's use of race as a "predominant" factor in admission, in favor of minority applicants over whites with similar (com-parable) qualifications (credentials) constituted a race-based double standard.

(c) To certify that the University has no "compelling interest" to justify the use of race in college admission.

(d) To grant compensatory and punitive damages to the plaintiff for being discriminated against.

(e) Issue an order (mandate) requiring the Law school to offer her admission.

(f) Issue an injunction prohibiting the Law school from continuing to discriminate against future applicants on the basis of race.

Prior to the institution of the law suit, the University of Michigan Law School had pursued an aggressive policy to achieve student diversity among it's entrants. However, it had tried to achieve the diversity goals through an academic focus with a flexible assessment of the talents, potential and expenses of candidates to contribute to Law school learning experience and culture. The policy allows the university to evaluate each candidate on the basis of a variety of information-personal statement, letters of recommendation, undergraduate GPA, and Law School Admissions Test (LSAT). Furthermore, the university looked at other variables beyond standardized values like test score and GPA to examine factors that contributed to the realization of the law School's educational goals and objectives. These include quality and recommendation, reputation of undergraduate program, course selection in undergraduate work, applicant's essay, community service and leadership qualifies that will eventually contribute to the intellectual and social life of the university.

Nonetheless, the university policy made it clear that neither the highest score the lower score will automatically qualify (guarantee) or deny an applicant admission only by itself. In essence, the law school determined whether a candidate is offered or denied admission on a totality of factors, some quantitative (standardized test scores) and some qualitative values (potential level, financial need, alumni connection, instate or out-of-state status and minority status.

The University had justified its goals of achieving diversity on the basis that:

(a) To attract students with diverse interests and backgrounds so as to enhance the education experience of the university, both in classroom discussion and beyond.

(b) To recruit students who might bring to the Law School, unique perspectives that will supplement those of "suspect" groups who have been traditionaily discriminated against.

(c) To build a "critical mass" (meaningful representation/number that makes minority students to feel a sense of belonging, encourage participation and not feel alienated or isolated in the classroom) of underrepresented minority students who would make unique contributions to the character of the Law School. That is, to realize the educational benefits of a diverse student body in a way that would not make race a predominant factor in the Law school admission calculus.

With respect to the racial diversity argument, the court ruled that diversity is a compelling state interest, which could justify the use of race in university admission. It recognized that diversity is particularly desirable in a Law School context given the fact that it is the primary training ground for America's leaders; and that effective participation by members of all racial and ethnic groups in the civic life of the nation is a worth while goal for achieving racial integration through the promotion of cross racial understanding and by breaking down racial stereotypes.

Moreover, the court found that the Michigan program was narrowly tailored to achieve its diversity interest by considering race or ethnicity as a "plus" factor when assessing every candidate in a manner consistent with Bakke. It should be recalled that Bakke provided academic institutions with the framework with which to pursue their academic missions and be flexible enough to consider race or ethnicity as a "plus" factor. This is as long as it is conducted in a holistic manner, in which each applicant is compared against those of other individual applicants. The court therefore validated that the Michigan policy is not a quota, since the Law School, in trying to achieve its goal of attaining a "critical mass" of underrepresented minority programs did not reserve a certain number or proportion and opportunities or slots exclusively for minorities. Even by the standard established in Bakke, emphasis on numbers alone, without adequate and pertinent information could not in itself turn a flexible admissions system into a quota.

Finally, the court noted that admissions that are designed to achieve racial balance should be short-lived; and that universities need to include sunset clauses in their policies that would warrant periodic reviews as to their progress in achieving diversity; and whether the program should be terminated or continued. However, a cut off period of 25 years was suggested by the court in the future.

Hopwood V. State of Texas (1994)

This suit was brought by Chery Hopwood and three other white students who claimed that they were discriminated against when the University of Texas Law School denied them admission in 1992, in favor of less qualified minority students. The plaintiffs had charged that the University had established a dual admission system, which gave preference to black and Hispanic applicants over whites in the Texas Index Score. The Federal District Court in Austin, Texas, presided by Judge Sam Sparks, ruled that "while certain types of race conscious admission are constitutionally justified at the Law School; the 1992 admission policy, under which the plaintiffs were considered and rejected was not "narrowly tailored," and thus was unlawful.

The court agreed with the plaintiffs that any consideration of race or ethnicity by the Law School, for the purpose of achieving a diverse student body does not constitute a "compelling interest" under the interpretation standard of the Fourteen Amendment of the U.S. constitution. By so ruling, the court ruled out any consideration or race in the admissions process. While the court acknowledged that obtaining the educational benefits that flow from a racially and ethnically diverse student body remained a desirable goal and objective, it however, held that the 1992 admission criteria failed to meet the constitutional standards set by the Fourteenth Amendment to apply one rule in the admission process.

Enforcement of Hopwood

The implementation of the provisions of the ruling on Hopwood led to the removal of all consideration of race from being "narrowly tailored" (in the UT. Law School Admission) to a "more broadly "tailored" and the elimination of all race conscious Affirmative Action Programs and remedies in all public and private institutions that receive federal funds in Texas. This decision affected all prevailing activities and policies in the use of race in admission, retention, recruitment, scholarships and financial aid. On Feb 5, 1997 Texas Attorney General Dan Morales issued an opinion on the interpretation of Hopwood, that based on the opinion of the Fifth Circuit's opinion in Hopwood that race could be considered if the following criteria were met:

a. If an institution or the legislature found that an institution had discriminated in the recent past.

b. If past discrimination are due to specific institutional practices.

c. If consequent affirmative action programs were "narrowly tailored" to remedy the effects of past discrimination.

Impacts of Hopwood on Texas Higher Education and Its Aftermath

The immediate effect of the Hopwood ruling was the decline of Latino students in all of Texas University undergraduate programs. The same was true of African Americans, which declined, from 2.9% of the freshman class in 1996 to 2.5% in 1997. Many factors were responsible for the significant decrease in minority enrollment after Hopwood.

First, the percentage of minority students declined as the ban on the consideration of race extended to admissions and financial aid took effect. Black and Latino students experience financial setbacks as funding programs previously reserved for underrepresented minorities became available to white students.

In order to stem the tide of minority decline in Texas Colleges and Schools, the Texas Higher Education Coordinating Board's Advisory Committee on Alternate Criteria for Diversity was constituted. The committee was charged with the responsibility to come up with "factors" that corresponded to characteristic or traits of "economically and educationally disadvantaged" segments of Texas population with the purpose of identifying methods to improve minority admissions. The committee, charged by Dr. Jerry Gaston of Texas A&M University College Station, issued the "Gaston Study" that eventually introduced alternative plan to insure access to the State Universities by minorities. Based on this report, Texas now admits students in the top 10% in each high school graduating class in the state, regardless of their score on Standard Achievement Tests, like SAT Scores. This so called nonracial conscious remedy in admission was intended to generate academic competition among college bound high school students, while at the same time allowing students from high schools with heavy minority presence (enrollments) to gain admission into Texas Colleges and Universities.

Adarand Constructors, Inc. V. Pena (1995)

In this ruling, the U.S. Supreme Court ruled that government may treat people differently on racial or group classification grounds, only for the most compelling reasons. Such action, in the courts opinion, does not violate the constitutional guarantee of equal protection, as long as the requirements are "narrowly tailored". By so ruling, the Supreme Court thereby limited minority preference (race-conscious programs) in contracting.

Jennifer Gratz V. Lee Bollinger (2003)--The Undergrad. Case

Petitioner Jennifer Gratz whose application for admission to the college of Literature, Science and Arts, University of Michigan was denied. In October 1997, she filed a law suit, alleging racial discrimination in violation of the Fourteenth Amendment's Equal Protection Clause and Title VI of the Civil Rights Act. The plaintiff prayed the court to:

(a) Award compensatory and punitive damages for past violations against her constitutional rights of equal treatment.

(b) An injunction prohibiting the respondent from continuing to discriminate on the basis of race in Violation of the Fourteenth Amendment.

(c) Determine whether use of race as a factor in admission violated the Equal Protection Clause of the Fourteenth Amendment.

The undergraduate program considered a number of factors in its 150-point admission system. In it, some points were awarded for academics (High school grades, standardized test score, high school quality, strength of curriculum, letter of intent essay etc). These factors were often referred to as "race neutral or "hard" admission criteria.

Applicants were also evaluated on the basis of non-measurable criteria:
   Applicants unusual circumstances (financial need,
   first in family to attend college geographical
   residence (in-state v. out-of-state status), alumni
   relations, minority status etc.). This index is what
   the University of Michigan referred to as "SCUGA"
   factors. It should be recalled that out of the 150
   points, 110 was the maximum allocated for
   academics. Up to eighty points were awarded for
   grades, while about twelve points went for
   standardized tests. Michigan also added or
   subtracted up to ten points on the strength and rigor
   of the applicants high school, and added or
   subtracted up to eight points on the basis of the
   strength of the applicant's curriculum. However,
   automatic twenty points were added to applicants
   of color--Hispanic, African-American, and Native
   American etc.


Many scholars believed that the twenty points awarded automatically might have been designed to compensate for the eighteen possible deducted points from minority students who attended rigorous high schools with less rigorous curricula. On the other hand, it might have reinstated the possible points that minority students who attended high performing high schools with strong academic curricula. Put in politically correct term, minority students who attended predominantly "white" schools) might have paid dare academic price due to racial discrimination or what Claude M. Steele called "stereotype threat."

In a majority-opinion rendered by Chief Justice Rehnquist (joined by Justices O' Connor, Scalia, Kennedy, and Thomas), the court upheld its position in the Grutter V. Bollinger (2003) case that "diversity" remained a compelling state interest that could justify the use of race as a plus factor in college admissions. In its 6-3 decision, the Supreme Court found fault with the undergraduate admission program, on the basis that automatic 20 points to applicants of color, without further consideration of other attributes, was not "narrowly" tailored. As such, it concluded that, the automatic distribution of 20 points out of 150 possible maximum had the effect of making race a decisive factor for virtually every applicant of minority group, irrespective his qualifications. Hence, the Michigan undergraduate admission policy violated the Equal Protection Clause, for placing too much emphasis on race in a way that was both determinate (decisive) and inflexible. Therefore, the court cautioned that the University could not use quota, provide automatic points for minority status nor perform racially segregated review of applicants, by separate review committees. But, the court acknowledge that Universities could make individualized determinations for admission, considering other factors, among which is the race of the applicant. When using race as a "plus" factor in admission, the university, in the words of the Supreme Court, must remain flexible enough to ensure that every applicant is evaluated as an individual and not in a way that makes an applicant's race or ethnicity the defining feature of the candidate's application. The importance of the individual--centered focus in admission consideration was, in the court's opinion designed to neutralize race as a preeminent future in admissions.

Barbara Grutter V. Lee Bollinger et. al. (1993)--The Law School Case

Barbara Grutter, a white Michigan resident had applied to the University of Michigan Law School. Although she had a 3.8 G.P.A and 161 LSAT score she was placed on a waiting list, and later denied admission. In December 1997, she brought a law suit against the University of Michigan. In the suit, the plaintiff accused the law school of discrimination, and prayed the court to grant her relief on the basis of the following allegations against the Univ. of Michigan:

(a) She was discriminated against on the basis of race, in violation of the Fourteenth Amendment and equal protection clause of the constitution and Title VI of the Civil Rights Act of 1964.

(b) The law school used race as a "predominant" factor in admission, in favor of minority applicants over whites with similar (comparable) qualifications (credentials).

(c) Furthermore, the plaintiff asked the court to determine whether the law school's consideration of race in admission constituted a race based double standard in the law school's admission.

(d) To certify that the University had no compelling interest to justify the use of race in college admission.

(e) To grant compensatory and punitive damages to the plaintiff for being discriminated against.

(f) Issue and order (mandate) requiring the law school to offer her admission.

(g) Issue an injunction prohibiting the law school from continuing to discriminate against future applicants on the basis of race.

Prior to the institution of the lawsuit, the University of Michigan law school had pursued an aggressive policy to achieve student diversity among the entrants. However, it had tried to achieve diversity goals through an academic focus with a flexible assessment of the talents, potential and expertise of candidates to contribute to law school learning experience and culture. The policy allowed the university to evaluate each candidate on the basis of a variety of information such as, personal statement, letters of recommendation, undergraduate G.P.A, and Law School Admission Test (LSAT). Furthermore, the University looked for other variables beyond standardized values like test scores and G.P.A. to examine factors that would contribute to the realization of the Law School's educational goals and objectives. These goals and objectives are quality of recommendation letter, reputation of undergraduate work, applicant's essay, course selection in undergraduate work, community service and leadership qualities etc., and the so-called "soft" variables that would eventually contribute to the intellectual and social life of the university. Nonetheless, the university policy made it clear that neither the highest score nor the lowest score would automatically qualify (guarantee) or deny an applicant in admission only by itself. In essence, the law school determined whether a candidate was offered or denied admission on a totality of factors. Some quantitative (standardized test scores) and some qualitative (potential level, financial need, alumni connection, instate or out-of-state status, and minority status).

The university has justified its goal of achieving diversity on the bases that:

(a) To attract students with diverse interests and backgrounds.

Co) To enhance the educational experience of the university, both in classroom discussion and beyond.

(c) To recruit students who might bring to the law school, unique perspectives that would supplement those of "suspect" groups who have been traditionally discriminated against.

(d) To build a "critical mass" of underrepresented minority students who would make unique contribution to the character of the law school. That is, to realize the educational
   benefits of a diverse student body, meaningful
   representation/number that makes
   minority students to feel a sense of belonging,
   encourage participation and not feel
   alienated or isolated in the classroom; but
   not make race a predominant factor in the
   law school admission calculus.


With respect to the racial diversity arguments, the court ruled that diversity is a compelling state interest, which could justify the use of race in university admission. The court recognized that diversity is particularly desirable in a law school context, given the fact that it is the primary training ground for America's leaders. It also acknowledged that effective participation by members of all racial and ethnic groups in the civic life of the nation is a worthy goal of achieving racial integration through the promotion of cross-racial understanding and the breakdown of racial stereotypes.

Moreover, the court found that the Michigan program was narrowly tailored to achieve it's diversity interest by considering race or ethnicity as a "plus" factor when assessing every candidate in a manner consistent with Bakke. It should be recalled that Bakke provided academic institutions with the framework with which to pursue their academic missions.

However, they are expected to be flexible enough to consider race or ethnicity as a "plus" factor, and as long as it was conducted in a holistic manner, in which the qualifications and attributes of each applicant was compared against those of other individual applicants. The court therefore validated that the Michigan policy was not a quota, since the law school, in trying to achieve its goal of attaining a "critical mass" of underrepresented minority programs did not reserve a certain number or proportion of opportunities or slots exclusively for minorities. Even by the standard established in Bakke, "emphasis on numbers alone, without adequate and pertinent information could not in itself turn a flexible admission system into a "quota," the court asserted.

Finally, the court noted that admissions that were designed to achieve racial balance should be short-lived; and that universities need to include sunset clauses in their policies that would warrant periodic reviews as to their progress in achieving diversity. Next, the court reasoned that by so doing, race-conscious programs may be contingent upon necessity, as it suggests a cut off period of 25 years for affirmative action policies.

Conclusion

There is an enduring legal stalemate over affirmative action. The issue has created new problems and challenges for managers with respect to work layoff, hiring, promotion, pay equity and changing face (diverse work force and demography) and economic change. The issue in this time of globalization and outsourcing has become emotionally charged and politicized. However, the debate over affirmative action reminds us of the remaining vestiges of many forms of discrimination in the workplace based on gender, ethnicity, race, physical handicap and sexual orientation. Rhetoric over this divisive issue will not solve anything, but concrete results derived through training, education and experience.

Nevertheless, the reputation of somebody like Jayson Blair, a reporter of the New York Times who plagiarized has not helped the matter, as it has given Affirmative Action a bad rap. What has happened is that the debate over affirmative action is being repackaged by relying on supposedly new "test cases" to undermine affirmative action policies. Examinations of Bakke and the Grutter cases suggest almost disparate cases with similar legal principles.

Another case that has undermined the advocacy for affirmative action policies is the Piscataway case in New Jersey. The case was brought against Debra Williams (black defendant) by Sharon Taxman (White Plaintiff) in Piscataway, New Jersey. It should be recalled that in order to head off a ruling on the case by the Supreme Court, the Black Leadership Forum, a coalition of twenty one Civil Rights Organizations and the National Association for the Advancement of Colored People (NAACP) legal defense and Educational Fund settled the case out of court; and paid the plaintiff back salary and legal bills in 1997. This was for fear that this was a bad test case that would have harmed the cause of affirmative action in the long run.

The wind appears to be blowing in favor of affirmative action, as the need to pursue "diversity" as a national goal has become a societal and even global reality. This principle has now been upheld by both the Bakke and Grutter landmark cases, as premier educational institutions of higher education, the United States Army, the General Motors Corporation, and the National Association for the Advancement of Colored People (NAACP) in the United States brought pressure to bear in their amicus briefs before the Supreme Court in the Grutter case. Hence, there are enough precedents and case laws on the books to provide formidable cover for affirmative action, with respect to its being overturned. Thus, the burden of proof now stacks against the opponents of affirmative action, in terms of showing that race-conscious policies are no more necessary.

But, there is the danger in packing the courts with conservative judges who embrace the "judicial self-restraint "philosophy, which believes that federal judges are not elected by the people, and as such should not substitute their personal views for the views of elected representatives. In other words, they should follow the lead of congress, the President and the states whenever interpreting the constitution, unless where there is a clear violation of basic constitutional principle.

The danger to overturning affirmative action policies may not come easy, as case laws and precedents flowing from the Bakke and Grutter decisions are not easily surmountable. Nevertheless, in an era of "imperial presidency" and congressional lack of assertiveness; Republican control of the White House and the two Congressional chambers pose a new policy threat. In the absence of a "divided government," the strong will of the Republican Party to confirm Presidential Judicial nominees to the federal courts and the Supreme Court should be a concern to affirmative action proponents. Bolstered by the Republican control of the leadership of Judicial Committee of Congress; presidential use of "recess" appointment powers and executive orders, the fight over affirmative action has not yet been won.

One way to guarantee affirmative action is by winning the political war as well; by electing friends of affirmative action to the presidency, state courts, state attorney generals' offices and congress. The election of "judicial activist" judges to the bench is invaluable because the interpretation of the law would reflect the view that the constitution is a living document whose strength lies in the fact that its flexibility promotes the needs of contemporary American society.

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Title Annotation:Allen Bakke, Barbara Grutter
Author:Kamalu, Johnson A.; Kamalu, Ngozi C.
Publication:The Western Journal of Black Studies
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Date:Dec 22, 2004
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