Affirmative action still an obligation

April 11, 2001|By David A. Love

I'M AN African-American who is the beneficiary of affirmative action. I find the recent federal court decision ordering the University of Michigan Law School to dismantle its affirmative-action program disturbing.

I was able to take advantage of educational opportunities, first by attending Harvard College and Harvard Business School and now the University of Pennsylvania Law School. I know I was qualified for admission at all three institutions, where I and other minority students have done well. But historically, African-Americans have not been given a chance.

My class at Penn Law has 230 students, of whom 30 are black. It is the largest group of African-Americans in the law school's history. But in 1927, when African-Americans typically were banned from the legal profession, there was Sadie Alexander.

A Wharton School graduate and the first African-American to earn a doctorate in economics, Sadie Alexander was the first black woman to graduate from Penn Law. As a student, the restaurants and cafeterias near campus would not serve her. The dean of the law school would not speak to her and would not allow the few white female students to study with her. When she made Law Review, he canceled her selection.

Since Alexander's time, the number of black law students and lawyers has increased substantially, but not enough. Until the mid-1960s, American law school classes had a mere handful of minority students. By 1990, 8 percent of the nation's lawyers and 12 percent of the nation's law students were black, Asian, Latino or Native American, although combined they accounted for one-quarter of the country's population.

Currently, about 10 percent of lawyers and 20 percent of law students in the nation are minorities, compared with about 30 percent of the total population.

Now U.S. District Judge Bernard A. Friedman wants to turn back the clock.

"All racial distinctions are inherently suspect and presumably invalid," Mr. Friedman wrote in his ruling. "By using race to ensure the enrollment of a certain minimum percentage of underrepresented minority students, the law school has made the current admissions policy practically indistinguishable from a quota system." The judge called for a race-neutral admissions policy at the institution.

In December, another federal judge upheld the University of Michigan's affirmative-action program for undergraduate students. Judge Patrick A. Duggan ruled that diversity in education is a compelling state interest and one of many valid factors that the university may consider in its admissions decisions.

Mr. Duggan was right and Mr. Friedman was wrong: Affirmative action is necessary. It helps redress the wrongs of past and current discrimination.

At a time when the country is becoming increasingly black and brown, the "old boys network" of racial exclusion is no longer acceptable. Diversity is good for the country, and society has an obligation to ensure that all groups of people have an opportunity to excel in life. Moreover, students have a more meaningful educational experience when they are exposed to different types of people and are better equipped to function in the real world.

But the clashing court decisions all but guarantee that the U.S. Supreme Court will weigh in on the issue very soon. These recent cases pit the U.S. Constitution's equal protection clause against the 1978 decision in Bakke vs. Regents of the University of California. The equal protection clause prohibits institutions from favoring a person on the basis on race unless there is a compelling state interest. In Bakke, the Supreme Court ruled that schools may use race among other factors in admitting students.

But Mr. Friedman denies the state has a compelling interest. He couldn't be further off base.

"Bar leaders and others in the legal profession report that the increased participation of minorities has brought with it greater public confidence in the fairness and integrity of the legal profession," writes Derek Bok, former president of Harvard University. "If American law schools were precluded from considering race as a factor in admissions, this public perception, that the American legal system can be entrusted to provide equal justice under law, would be imperiled."

Ironically, the deciding vote on the U.S. Supreme Court may be cast by another beneficiary of affirmative action -- Justice Clarence Thomas. He, of all people, should be able to see the need for it.

David A. Love is a public interest scholar at the University of Pennsylvania Law School. He contributed to the recently published book "States of Confinement: Policing, Detention and Prisons" (St. Martin's Press, 2000). Distributed by Knight Ridder/Tribune Information Services.

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