Affirmative action in jeopardy

Racial preferences are in serious legal trouble after losing again in court this week, leaving their status murky.

Affirmative action - one of the most contentious issues in America for decades - is under siege as never before.

Years of litigation by groups opposed to the use of race as a consideration in school admissions or government contracts appear to have now cleared the way for a sweeping redefinition of how, or even whether, US institutions can pursue racial diversity.

Tuesday's ruling by a Detroit federal judge that the University of Michigan's use of racial distinctions in its law-school admissions policy is unconstitutional is only the latest in a string of complicated, and occasionally contradictory, legal decisions.

Taken together, they ensure that over the next year or two the nation's highest court will likely define new limits for the role of affirmative action in public life.

"This fault line is so severe that this question will have to end up at the Supreme Court," says William Van Alstyne, a law professor at Duke University in Durham, N.C.

The high court already took a step toward further refinement of affirmative action earlier this week, when it agreed to hear a challenge to a federal highway construction program that favors minority contractors.

The outcome of that case - which will be argued this fall - could well determine how far the US government can go in giving an edge to blacks or Hispanics in public works projects as a means to redress past discrimination.

It is also likely to show where the new Bush administration stands on affirmative action, as Attorney General John Ashcroft's Justice Department will be defending a program heavily shaped by Janet Reno and the Clinton administration.

Then there are the education lawsuits. The debate over race-conscious admissions policies is one of the most heated of all affirmative action subissues, as it involves children's futures. It has roiled college campuses from Berkeley to Austin and beyond.

The March 27 decision by US District Court Judge Bernard Friedman was only the latest in a string of rulings that have circumscribed university administrators.

"All racial distinctions are inherently suspect and presumptively invalid," writes Judge Friedman. "Whatever solution the law school elects to pursue, it must be race-neutral."

This position, however, is in direct contradiction with one of the few recent rulings to have upheld affirmation action - a decision by another judge of the same court that upheld the same university's undergraduate admissions process.

The two rulings will likely be combined into one, and pass through an appeals court ruling to eventual Supreme Court determination, say legal analysts.

The basic question on which the two University of Michigan decisions differ: When is a race-based remedy a "compelling state interest"?

Conservatives are hailing the most recent Michigan ruling as evidence of the coming trend. "If this decision is sustained by the appeals court it will be incredibly important," says Abigail Thernstrom, co-author of "America in Black and White: One Nation, Indivisible."

She and other conservatives say the philosophical makeup of the Supreme Court, and its recent decisions, makes it appear unlikely that it would rule against any appeals court decision against the use of race as a factor to create diversity on campus.

Conservative analysts say that Supreme Court justices have been consistent in saying race preferences are permissible only to remedy specific instances of past discrimination. It can't be used to achieve diversity or fix societal discrimination.

"The high court is never going to say you can't have racial preferences," says Curt Levey at the Center for Individual Rights, a conservative public-interest law firm that helped bring the Michigan law school case. "The real issue is: Can you have preferences to achieve diversity?"

In the short term, college admissions office are unlikely to radically alter policies, although there may be some minor changes.

"People will take another look at policies to see what they can do to insulate themselves from constitutional attack," says George Rutherglen, a University of Virginia law professor.

But Rutherglen does not expect affirmative action programs to disappear. The drop in admissions at the University of California at Berkeley's law school since it has been forced to drop its racial preference programs shows college administrators that something is needed to ensure some kind of diversity, he says.

Much of the business community supports affirmative action, as well. In the wake of this week's ruling against the University of Michigan's law school, one of the state's biggest employers - General Motors - issued a statement reaffirming its backing of affirmative action in education as necessary to prepare students for a the diverse workplace of the future.

"The tide has been going on on affirmative action since the mid-1980s.... But even though most of the decisions have been more and more restrictive, politically as well as judicially, many of the programs remain in place," says Professor Rutherglen.

(c) Copyright 2001. The Christian Science Monitor