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Affirmative Action No More

Say farewell to affirmative action in publicly-funded universities. Oh, it keeps limping along, wherever people haven’t wrongly credited it as reverse discrimination.

But the patient is slipping, and slipping fast. Affirmative action today hardly resembles the robust idea that came out of the ’60s, when it was seen as the great social rectifier, the equalizer.

It was June 4, 1965, when President Lyndon Johnson spoke to the graduating class at Howard University, laying the foundation for the idea of affirmative action.

Said Johnson: “You do not wipe away the scars of centuries by saying: ‘Now, you are free to go where you want, do as you desire, and choose the leaders you please.’ You do not take a man who for years has been hobbled by chains, liberate him, bring him to the starting line of a race, saying, ‘you are free to compete with all the others,’ and still justly believe you have been completely fair . . . This is the next and more profound stage of the battle for civil rights. We seek not just freedom, but opportunity — not just legal equity, but human ability — not just equality as a right and a theory, but equality as a fact and as a result.”

We all believed in it then, when it was full of confidence and a sense of justice.

But it’s been beaten down, shamed and diminished, so much so that it hardly casts a shadow.

Here in California, there’s nothing affirmative where there is no action. But by next June, expect affirmative action to be gone for good throughout the nation.

This week the Supreme Court agreed to take up the issue, in a hotly debated University of Michigan Law School case. It may as well have set an execution date.

The case involves white applicants who claim they were unconstitutionally denied admission because of their race, while black applicants with lower test scores were given places at the law school.

An appeals court upheld Michigan’s affirmative action polices last May, rightfully saying that the Constitution lets colleges and graduate schools seek diversity in their student admissions, as long as they avoid quotas.

That decision was based on the infamous Baake case, the Supreme Court’s last affirmative action. In 1978, the court ruled 5-4 that while quotas were illegal, race was a legitimate factor in admissions.

But ever since then, affirmative action has been under constant challenge for clarity.

Now it looks like we’ll get it. And chances are, it will be another heartbreaking 5-4, reversing the decision.

I’m trying not to overreact, but facts are facts. There are nine justices on the Supreme Court. You don’t need a crystal ball to see the outcome.

Let’s take them one by one:

Chief Justice Rhenquist: Nixon appointee, nominated by Reagan as Chief Justice. Is there any doubt? He was there for the first Baake vote and has consistently been against “racial preferences.” Affirmative action has no friend here. A vote against.

Associate Justice John Paul Stevens: Ford appointee. Pro-choice. Pro-affirmative action. A vote for.

Associate Justice Sandra Day O’Connor: Reagan appointee. Seen as a swing vote on most issues. Has voted in the past to limit affirmative action. A second vote against.

Associate Justice Antonin Scalia: Reagan appointee. Mr. Strict Constructionist. Historical legacy of discrimination means nothing to him. A third vote against.

Associate Justice Anthony Kennedy: Reagan appointee from Sacramento. Another who is seen as a “swing voter,” unfortunately not likely on this issue. Voting example: sided with the majority to exclude gays from the Boy Scouts. Four votes against.

Associated Justice David Souter: Daddy Bush appointee. Conservative who votes with the liberal bloc, especially on discrimination issues. Affirmative action has a second vote.

Associate Justice Ruth Bader Ginsburg: Clinton appointee. Liberal. Affirmative action’s third vote.

Associate Justice Steven Breyer: Clinton appointee. From Lowell High School. A solid believer in affirmative action, a solid fourth vote for the policy.

It’s all tied up, 4-4.

And that leaves it all up to Associate Justice Clarence Thomas. Another Bush appointee. Long Dong Silver aficionado. Yale Law Grad. The High court’s only person of color, he’s a known beneficiary of affirmative action, and he will ironically be the deciding vote that kills it.

The student plaintiffs win.

The renunciation of affirmative action is completed. Court-assured opportunity loses.

Fifteen percent of the first year law class at Michigan are minorities. Without affirmative action, the number of minorities is expected to drop to less than .04 percent. Some other schools will surely follow suit and drop their programs. More enlightened ones will find a way to make sure a school has a right to make some subjective judgements in admissions and allow for diversity. But the Supreme Court ruling will have the power to change the face of public colleges and universities around the country.

At least affirmative action was allowed to live for over three decades. That doesn’t match the era of slavery’s hold on America from 1790–1866. And it was still 100 years more between the end of slavery and the start of substantive affirmative action programs in this country.

The sad thing is, the policy really worked. The black middle class is a testament to affirmative action. Opportunities for Asians, Latinos and new immigrants exist because of affirmative action. If you think you got where you are all on your own, you’re kidding yourself.

So we must begin toasting affirmative action, while it’s still around in a form that has served us well. If we’re loud enough, we might still be able to morph it into something that will assure real opportunity in the future.

Reach Emil Guillermo at emil@amok.com.