Whose battle?

The latest fight surrounding affirmative action underscores what's at stake - not just for minorities, but for the next generation of women, Black and white.

It has become something of a cliche that the greatest beneficiaries of affirmative action are white women. While widely accepted, that notion obscures the fact that Black women have benefited significantly as well, in many cases even moreso than Black men.

In the past 30 years, affirmative action has helped usher in a new generation of middle class Black women. They - or more likely the young Black women who follow them - stand to be among the biggest losers if affirmative action ultimately is declared unconstitutional by the U.S. Supreme Court. That is why last year, on a December afternoon, University of Michigan (UM) Ann Arbor junior Agnes Aleobua sat in the courtroom of the U.S. Sixth Circuit Court of Appeals in Cincinnati.

As one of the top law programs in the country, the UM law school applies rigorous admissions standards, admitting students with some of the best academic credentials anywhere. Race is considered as part of the admissions process, but. as at most institutions of higher education, it is just one of many factors used in building a student body that is economically, racially and culturally diverse. Nevertheless, the consideration of race continues to draw fire.

Michigan's affirmative action policy has been under assault since 1997 by the conservative Center for Individual Rights (CIR) based in Washington. D.C.. which filed the suit against UM that brought Aleobua to court late last year. The CIR successfully argued the 1996 Hopwood i,. Unis,ersity of Texas case which ended affirmative action in higher education at public institutions in Texas. Louisiana and Mississippi. Neither Aleobua nor the other affirmative action supporters who showed up in the Cincinnati courtroom wanted to see the same thing happen in the Sixth Circuit. which covers Michigan, Ohio, Kentucky and Tennessee.

Now 21, Aleobua is an education major from Detroit. But a few years ago, she was a typical high school student, oblivious to the ramifications of the Hopwood decision or Proposition 209, which ended race-based college admissions in California in 1997. An honors student and 1999 graduate of Detroit's prestigious Cass Technical High School, she had hoped to attend Harvard or Cornell. However, her plans for going to an out-of-state college changed when members of By Any Means Necessary (BAMN), a group of college students and grass-roots activists from her home state, came to her high school.

BAMN members talked with their young counterparts about the anti-affirmative action lawsuit against UM and encouraged them to join them in the fight against it. BAMN members impressed on the students that if the white women who brought the case prevailed, Black students' ability to attend the state's most prestigious university would be jeopardized. Aleobula had only to look to Texas and California to see what was at stake. It was then, she says, "I just knew I wanted to be part of the movement they were talking about."

Aleobua abandoned her Ivy League plans. She applied and was accepted into Michigan's undergraduate school and has been a BAMN activist ever since. She also became an intervenor in the law school case, joining the suit as a defendant.

At press time, the Sixth Circuit's decision was expected in early May. According to a court source, the panel was expected to vote 5-4 in favor of UM Law School's affirmative action policy, overturning a U.S. District Court decision that had declared it unconstitutional. The attorneys for the plaintiff - Barbara Grutter, a white woman - are vowing to take their case to the U.S. Supreme Court. Civil rights advocates expect the High Court to take the case, placing its constitutional implications under tough scrutiny from a panel of justices that is more conservative than the appeals court.

Theodore M. Shaw, associate director-counsel for the NAACP Legal Defense and Educational Fund, knows how tough the battle will be. On almost every major civil rights case over the past 10 years in the area of race discrimination, voting rights and affirmative action, the Supreme Court has ruled 5-4 against civil rights. "The Supreme Court has been close on every other issue involving race and affirmative action," he says. "We don't know if they'll take it, but if they do, it will be close."

Donna Stem, a national coordinator for the grassroots United for Equality and Affirmative Action and a member of BAMN, knows what's at stake: "The right and CIR have very cynically used white women such as Grutter to spearhead their cases in order to... divide white women from Black people and other people of color. And while there is no doubt in our mind that Black women are being hurt, if the effort to overturn affirmative action on the basis of race is successful, then all the affirmative action programs, including those based on gender, will be open to challenge."

THE CASE

Curt Levey, director of legal and public affairs for the Center For Individual Rights, says it's too early to discuss CIR's next move, but the organization and the plaintiffs are in the battle for the long haul. He disagrees that white women benefit from affirmative action. "In admissions, white women don't benefit at all," he says. "In fact, they are hurt by it because 53 percent of all undergraduates are women. So white women are hurt by affirmative action in admissions."

Grutter, who didn't get into Michigan's Law School when she applied in 1997, claims racial considerations kept her out.

There is a separate suit pending against UM. Jennifer Gratz, who was not admitted in 1995 (but was wait listed), makes a charge similar to Grutter's in her case against the Ann Arbor undergraduate program. Patrick Hamacher, who also applied unsuccessfully for the undergraduate program at Ann Arbor in 1997 has joined the suit. The Sixth Circuit is expected rule on their case in the weeks following the Grutter decision.

Levey describes Grutter, a 48-year-old health care consultant from Plymouth, Mich., as upset that she faces discrimination in the workplace as a woman. She brought the suit, he says, to abolish the discrimination she faces because she is white. "She already suffers one form of discrimination [gender], she doesn't need to suffer another," he explains.

All of the plaintiffs, who are seeking monetary damages, argue the admissions policy unlawfully discriminated against them and probably altered the course of their lives. Grutter remains in Michigan with her family. Gratz, now 24, graduated from the University of Michigan-Dearborn in 1999. She now lives in San Diego, where she works for a software company. Hamacher, 23, graduated from Michigan State University in 2001 and is an accountant in Flint, Mich.

BACK TO BAKKE

Beyond the quantitative criteria of grade-point averages and LSAT scores, Michigan uses subjective criteria applied by most college admissions committees. Throughout the country, preference is often given to students who are children of alumni, reside in a certain state or part of the country, or possess exceptional talent in art and music. Even demonstrated character traits, such as leadership and volunteer service, are taken into account. Being female, in a traditionally male field, or male in a traditionally female field also may be taken into consideration.

At Michigan, officials have insisted that all of those who are admitted to the university meet a high level of achievement and performance, even if some students are admitted ahead of others who have higher grades and test scores. In fact, testimony in the case against Michigan showed that there were many white students admitted to the university who had test scores and grades that were lower than plaintiff Jennifer Gratz's. In 1995, the year Gratz applied to UM, of the students admitted with lower scores and grades, 1,243 were white (46.7 percent) and 725 were Black (27.2 percent).

But race is an easy shot to take.

Writing in The Washington Post, Goodwin Liu, a Washington lawyer and former Supreme Court law clerk, called it a myth that whites are significantly hurt by affirmative action. Those indulging in "causation fallacy" inflate the impact that racial considerations have on white applicants and ignore other factors that also are in play, he wrote: "While it is true that affirmative action gives minority applicants a significant boost in selective admissions, it is not true that most white applicants would fare better if elite schools eliminated the practice."

A 1999 study of Michigan law school graduates refutes claims that minorities admitted through affirmative action are unqualified. It found that more than 97 percent of minority graduates during a 27-year period passed the bar exam and were enjoying successful legal careers. "All admitted students, regardless of race, came to Michigan with powerful quantitative and non-- quantitative evidence in their files that they would succeed professionally," Michigan law professor David Chambers, a co-author of the study, said after its release. "And that is exactly what they have done."

Referring to the landmark Bakke decision, UM argues that the Constitution and civil rights statutes permit it to take race and ethnicity into account in order to achieve the educational benefits of a diverse student body. In the Bakke case, more formally called University of California v. Bakke (1978), the Supreme Court upheld the use of race in college admissions but struck down the admissions policy at the University of California at Davis medical school that reserved 16 of 100 seats for minority applicants. Writing for the majority, Justice Lewis Powell held that "the interest of diversity is compelling in the context of a university's admissions program, because it contributes to the robust exchange of ideas."

Plaintiff Allan Bakke, Lui points out, was rejected by the UC Davis medical school twice. Despite having stellar credentials on paper that were better than most whites who were admitted, Bakke was rejected for personal "weaknesses" that were never highlighted in media reports. More recently, Lui devised a formula that found that in Bakke's case the chances of not getting into the highly selective medical program rose only marginally, from 96.8 percent to 97.3 percent, if race had not been a factor in admissions decisions.

ADDRESSING THE PAST

Using race as a factor in admissions is a relatively new practice at the University of Michigan, one that has helped the school address its segregated past and build a racially diverse student body. That diversity brings with it educational benefits is a widely accepted truth. Students of various cultures, races and ethnicities bring varying viewpoints, cultures and life experiences that contribute to campus life. Roderick Gillum, vice president for corporate relations and diversity for General Motors, who helped file a brief in support of the Michigan law school, notes that critics of affirmative action have no problems when it is used for purposes other than racial diversity. Giving one example, he says, "Universities consciously and aggressively recruit international students for the diversity of thought they bring to the classroom."

Miranda Massie, the lead attorney for Aleobua and the other students who intervened in the law school case, points out how the law school operated before affirmative action: The class of 1964 was all white and almost all male. Of the 5,772 students who graduated from the law school between 1950 and 1970, only 44 were Black. None were Latino, Asian American or Native American. By the late 1960s, the UM Law School adopted an affirmative action plan that finally opened the doors of opportunity. Since 1992, it has averaged 28 Black students in an average class of 300. In recent years, more of the Black students have been women (see chart at right).

Former UM President Lee Bollinger, who will take over in July as president of Columbia University in New York City, says that if the university has to abandon affirmative action, Black student enrollment will decline from about 8 percent to about 1 percent. The Hispanic and Native American student populations would see similar declines.

Attorney Massie sees irony in having white women as the lead plaintiffs in the lawsuits against the university, since affirmative action has accounted for much of the progress of American women. She calls it an intentional tactic by CIR to hide the fact that the death of affirmative action would severly hurt the opportunities of white women - and even some white males. "Very elite white men" stand to gain the most, by her account. "Affirmative action broke down the `old boys' network. Before affirmative action you couldn't get a skilled trades job in the union unless you knew somebody in the hierarchy. And you certainly couldn't get into the UM law school unless you were socially privileged. By breaking things open for Black students, affirmative action broke things open and created access for Latinos and for women of all races and for working-- class and modest white young people."

"Affirmative action is a tool for offsetting unearned privilege," she continues. "Primarily privilege of race and gender, but the dynamic automatically extends itself to class. So the idea that working-class and middle-class white men have not really gained a lot from affirmative action is a lie of the right wing."

Speaking at the annual Freedom Fund dinner in Detroit on Apr. 28, NAACP Chairman Julian Bond said, "affirmative action is under attack not because it failed but because it succeeded."

There's no denying the devastating void of opportunity the loss of affirmative action would create. The aftermath of affirmative action bans in other parts of the country are foreboding. After the Hopwood decision, Latino and African American admissions at the University of Texas dropped by 64 percent and 88 percent, respectively, in one year. Blacks and Latinos now comprise barely 6 percent of the first-year law school class in a state where minorities are 44 percent of the college-age population. Similar declines took place at the state's three other public law schools. In California, where Proposition 209 and the state Board of Regents eliminated affirmative action at the graduate school level, the impact has been most profound at the University of California's professional schools. In 1998, the first year the ban affected admissions, the number of Latinos admitted dropped by 35 percent and African American admissions declined by nearly 72 percent.

WORKING WOMEN

According to an American Civil Liberties Union study, overall admissions of Black, Latino and Native American students were cut in half at the UC Berkeley campus. Though the numbers of minority students are slowly increasing in the UC system, the loss of affirmative action has created a two-tier system where Black, Latino and Native American students are now concentrated at the less-prestigious state campuses. At the elite flagship campuses of UC Berkeley and UCLA, their numbers continue to decline.

A disproportionate number of Black applicants rejected by Berkeley and UCLA in 1998 were Black women, says Shanta Driver, national coordinator for BAMN. She underscores the point that women in professions where females are under-represented are threatened. Her argument is supported by a report from the National Partnership for Women and Families, which found that affirmative action programs are vitally important in helping break through the glass ceiling. The 1998 report noted the bipartisan Glass Ceiling Commission findings that less than 5 percent of senior managers (vice president and above) in Fortune 1000 companies were women or people of color, even though women comprise 46 percent of the workforce and people of color 21 percent. (More than 95 percent of the female senior managers were white women, while only 2.3 percent were African American women.)

General Motors' Gillum says the company's support of Michigan's admissions policy is not merely good social policy, but sound business. "Some corporations limit their recruiting to the most selective universities. If those top universities don't include the broadest spectrum of students, corporate America loses out," he says. "GM's support of affirmative action is as much about good business sense as it is the right thing to do."

Harold Curry, a Detroit-area lawyer, was among the first Blacks to graduate from the University of Alabama (1969). Curry says he thought by now Black students would no longer be fighting to get into public, tax-supported universities. "I always thought the institutions would become more flexible and diversity would grow as time went on," he says.

Curry sent his daughters Cherie and Jade to UM, even though Cherie was accepted at Yale and Princeton. He said if affirmative action is ultimately struck down by the Supreme Court, it will set the entire society back. "That will put us in reverse progress," he says. "One of the consequences of preventing Black folk from attending UM will be [that it becomes) an institution that produces fewer minorities and [hampers] all the know-how they could share with society. Our society will be the ultimate victim when you look at the successful women who come out of UM."

One of those women is Curry's eldest daughter, Cherie Curry, an anchor and reporter for WTOL-- TV in Toledo, Ohio. Several years ago she graduated cum laude from UM with a major in French and minor in communications. Curry says she found the lawsuit against Michigan personally insulting. "I assume anyone accepted into the university is well-qualified," she says. She is a proud beneficiary of affirmative action - just like all of the white women she knows, particularly those in her line of work: "In my own business I have seen white females benefit from affirmative action. White males make up the largest percentage of people in broadcasting, but white females are right behind."

The gains made by women and racial minorities move in the same direction, says UM assistant law school dean Charlotte Johnson. "So as one goes so does the other. There are some women and women's groups who recognize the importance of the link and have joined the ranks with African Americans, Hispanics and Native Americans in the struggle."

Echoing the sentiment of Massie and Stem, Johnson says other women who ignore the link and say it's not their fight, do so at their peril. "It's a mistake. It is our struggle, and we're all in this together."

In the meantime, Aleobua is engaged in her own struggle. She recently ran unsuccessfully for president of UM's student government. She says that during a visit to the UM campus, anti-civil rights extremist David Horowitz, author of Uncivil Wars: The Controversy Over Reparations for Slavery, called her a "Black racist" for defending affirmative action.

"There is an illusion that there is no more racism, and no longer a need for measures to integrate our society. But I think that is not true. Our society needs more of those measures not less. There is inequality in society and Black people are given the short end of the stick, and that has to change," she says. "It will start by people like myself standing up and fighting."

Trevor W. Coleman is an editorial writer and columnist with the Detroit Free Press.

Copyright Crisis Publishing Company, Incorporated May/Jun 2002
Provided by ProQuest Information and Learning Company. All rights Reserved