College Preference Fallout

By James Mills | Wednesday, January 21, 1998

Earlier this year the Supreme Court refused to hear a case claiming that Proposition 209, the proposition that made preferential treatment in California State Government illegal, was unconstitutional. Short of setting a reverse-discrimination precedent, this is the strongest sign that the affirmative action policies first created by Lyndon Johnson in the 1960s could face serious opposition in the future. The refusal of the Supreme Court to hear the California case is not the only sign that the days of affirmative action may be numbered. Cases charging reverse-discrimination, based on the argument that government funded preferences are unconstitutional, have emerged in a number of state courts. Although there are currently no major cases working their way through the federal court system, states as diverse as Michigan, New Jersey, and Nevada currently have reverse-discrimination cases on the dockets. Civil Rights groups have recently been involved in out-of-court settlements, attempting to prevent the emergence of a precedent-setting reverse-discrimination case.

The most prominent anti-affirmative action suit was that brought by Sharon Taxman, a New Jersey schoolteacher fired because she was white. In order to settle the suit, the NAACP and a coalition of other leading civil rights groups, fearing a ruling that would be disastrous for current affirmative action policies, agreed to pay Taxman a $433,500 award. Instead of using their money for useful programs to help minority groups and searching for fairer affirmative action programs, civil rights groups have continued to spend the money on out-of-court settlements, postponing several state decisions and ultimately a state decision. The civil rights group may have made a wise decision for their strategy, preventing this case from reaching the Supreme Court. This case may have been just the type of case that could have set a precedent for the demise of modern affirmative action programs. In the last few years the Supreme Court has been more critical of affirmative action programs that entail someone actually losing a job than practices involving hiring and promotions.

What exactly is the strategy of civil rights groups and are they simply postponing the inevitable? Some groups including the Black Leadership Forum openly admit the use of litigation settlement (or, in more accurate terminology, paying off anti-affirmative action litigants) to reduce the threat of precedent-setting cases, while waiting for a case that is more favorable to their position.

'Some say we are buying time. But buying time may be enough,' said Jesse Jackson. Jackson asserts that the constitutional fairness arguments made by conservatives and moderates are unfair for the disadvantaged and that 'America may one day come to its senses.' There are currently two potentially precedent-setting cases at the district court level, both involving college admissions. One of these cases is a class action suit by students rejected by the University of Michigan and the other is a case against the University of Washington Law School. The plaintiffs in both cases claim that the schools set significantly higher standards for white students than minorities.

The University of Michigan case presents the greatest threat to aims of civil rights groups. Two white students have filed suit alleging that they were rejected from U-Mich's Ann Arbor campus solely because of their race. Their case has been strengthened by previously unreleased data from the Michigan admissions office obtained by a philosophy professor at the school under the Freedom of Information act. The litigants, now attending less prestigious state universities than Ann Arbor, contend the new data proves that white applications with 3.2 GPA's and 1,000-point SAT scores were rejected in the first round of applications, while pushing minority applications with much lower scores and GPAs onto other rounds. The Michigan case applies to anybody rejected by Michigan in the last three years and with 20,000 applicants a year that's a settlement that a coalition of civil rights groups would find impossible to afford settlement. The case is likely to take at least two years before it makes it to the Supreme Court.

Current affirmative action policies have clearly not been effective in their stated goals and judging from national public opinion their days are likely numbered. A Supreme Court decision affirming reverse-discrimination as unconstitutional would force affirmative action proponents to attack the real issues preventing blacks and other minority groups from achieving the same advantages as Whites and Asians. The solution is not an easy fix set of policy alternatives, but a broad combination of local government, business, and private citizen involvement.

College Preference Fallout

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