THE Reagan-Bush majority on the Supreme Court has been hammering away at minority business set-asides, minority hiring plans, preferential admissions programs and other attempts at affirmative action.
The newest target is likely to be minority scholarships, and the case will come from the University of Maryland.
The U.S. Court of Appeals for the Fourth Circuit has reversed a decision by the U.S. District Court in Baltimore in favor of the University of Maryland's Benjamin Banneker Scholarship Program, restricted in recent years to high-achieving black students.
University officials apparently thought the program was constitutional, even though many blacks weren't eligible for Banneker Scholarships.
After all, it was established as part of a desegregation program mandated by the federal government.
But the appeals court said that's not enough.
And that sets up a great irony: To save the program, the university must establish that it has failed to eradicate the long-standing vestiges of racial discrimination that, in the first place, justified a scholarship competition exclusively reserved for blacks. All of this despite the university's successful efforts to create a racially and ethnically diverse student body at College Park.
I find this dilemma particularly regrettable. Amazingly, the University of Maryland has begun to break the shackles of its racist past. Outside of historically black institutions or the small, liberal and progressive colleges that broke the color line over a century ago, it is as warm and inviting as one could expect.
The university accomplished this by adopting an approach to integration that works in the long run. Blacks and other minorities are sought because the educational experience of all students must include preparation for a complex and diverse society that is multicultural and multiracial. But the irony is that to save the Banneker program, we must prove that discrimination and racism are still pervasive.
The appeals court's reversal has sent a chilling message to state and local governments confronted with similar challenges to their affirmative action programs based on racial preference. That unworthy message is: "If your program works, then it is suspect."
The Banneker Scholarship focus is on a particular group of black students: those almost smart enough to go to Harvard but not necessarily poor enough to get financial aid based on need. The program has had a major and sustained impact on the admission of scores of future African-American doctors, lawyers, engineers and business executives. The program works. It has aided in the transformation of the University of Maryland from a segregated and racially hostile bastion of white privilege to a vibrant, exciting, multiracial, multicultural intellectual mecca.
But the Banneker program benefits only a small portion of the intended beneficiaries. Economically disadvantaged minorities are less likely to get the scholarships because of the program's high standards. Other minority groups historically discriminated against are excluded even if they meet the standards.
For the past five years I have been a judge of the finalists in the Banneker Scholarship competition. Most of the winners are bright, middle-class kids. They write well; they are articulate. They have good grades and good but not wildly outstanding Scholastic Aptitude Test scores.
Rejected, unfortunately, are many other nonwhite graduates of inner-city schools from poor neighborhoods. They are sometimes athletes with good SAT scores but bad grades; or they have very high math scores but very low verbal scores. They are quick. They are sharp. They are raw talents. And some of them are recent immigrants from Vietnam or the Philippines or El Salvador. Many more are refugees from the housing projects or drug-infested and devastated nearby communities.
In other words, the Banneker Scholarship program was emerging as an elitist program for the black middle class. Lower the standards so that deserving disadvantaged blacks will qualify? No, that will intensify the stigma of being less-than-qualified. Raise the standard? No, not unless the commitment even to mediocre middle-class minorities is to be abandoned.
If national policy on admissions and scholarships for blacks at predominantly white institutions is to be based on the University of Maryland's experience, then we must look beyond the Banneker Scholarship program and its inherent flaws. When we do, we will discover that whites and other non-blacks have benefited from the creation of a vibrant heterogeneous campus life, enhanced by the presence of middle-class blacks.
The solution is to open the Banneker Scholarship competition to all, with financial need as one criterion considered. But in the meantime, we mustn't throw this baby out with the dirty water.
Keep those doors open, because slowly we will realize that affirmative action and more will be needed to expand these same opportunities to the poor. Abandoning the Banneker program would have the curious impact of stalling efforts like those of the University of Maryland that ultimately will benefit us all.
Samuel L. Myers Jr. directs the Afro-American Studies Program at the University of Maryland College Park and teaches human relations and social justice at the University of Minnesota.