Colorblind in one eye.

The law, lawyers, and the court.
Jan. 30 2003 5:11 PM

Colorblind in One Eye

The selective colorblindness of the Bush approach to affirmative action.

On Jan. 15, President George W. Bush announced his administration's intention to enter the affirmative action debate on the side of three white plaintiffs challenging race-conscious admissions at the University of Michigan in two cases pending before the Supreme Court. Bush took to the airwaves—on Martin Luther King Jr.'s birthday, no less—to condemn the University of Michigan's modest consideration of race in fostering diversity on the still-overwhelmingly white Michigan campus.

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Bush still professes to favor racial diversity, but he opposes the use of race to create it. Sort of like saying that you like meatloaf but prefer preparing it without hamburger. But the deeper problem with Bush's approach isn't just that he opposes the consideration of race as a means to the end of racial diversity. It's that he is also selective about his colorblindness—calling for the elimination of the slightest disadvantage to whites, while at the same time ignoring entrenched and systemic disadvantage to African-Americans and other racial minorities. Bush's upside-down logic calls to mind the wise words of Justice Harry Blackmun who remarked, "In order to get beyond racism, we must first take account of race. There is no other way."

Bush claims there is another way, under his "colorblind" "affirmative access" proposal. This refers to the law adopted by Texas in the aftermath of the 1996 court ruling in Hopwood v. Texas abolishing race-conscious admissions at the University of Texas. Similar versions have been enacted by California and Florida. The Texas law mandates the admission to university of all high-school seniors graduating in the top 10 percent of their class; California and Florida give a boost to the top 4 percent and 20 percent, respectively.

Many commentators have already pointed out the glaring problems with these percentage plans—not the least of which is that their success in creating racially diverse student bodies at the college level depends in significant part on the continued racial segregation of the state's high schools. They also don't affect admissions in private universities or in graduate or professional schools; and, in California, there is no guarantee of admission to the state's flagship institutions. There is some indication that minority first-year admissions at Texas universities have increased under the percentage plan, following the post-Hopwood plunge. But such admissions have yet to reach the heights achieved in the years prior to Hopwood, and at least some of the increase is due to a rising college-age black and Latino population in Texas.

Another important aspect of this debate has been obscured by Bush's allegedly colorblind approach to affirmative action. It won't significantly affect the representation of whites on many campuses. At the most selective institutions, the elimination of affirmative action would have an acute impact on the admissions of African-Americans and Latinos but would likely increase the chances of white admissions by just 1.5 percent. In other words, although there is a widespread perception that masses of white students are losing their seats because of affirmative action, in reality, race-conscious policies have a negligible impact on whites. As a matter of basic math, affirmative action cannot begin to account for the number of unsuccessful white candidates, because the sum of minority students admitted under race-conscious policies is dramatically less than the number of white candidates denied admission.

Yet opponents still equate affirmative action policies with "discrimination against whites" and draw audacious parallels between such policies and the racist practices of universities during the era of de jure segregation. The University of Michigan is at least 80 percent white, so it isn't credible to claim that it or its affirmative action policy discriminates against whites as a group. Nor can there be an honest comparison between Michigan's inclusive policy, which aims to create a racially diverse learning environment, and the exclusionary, segregationist policies in the generations prior to affirmative action that kept all African-Americans out of Southern colleges and universities and all but a token number out of Northern institutions.

Further, while most of the public scrutiny concerning affirmative action has been on the qualifications of African-American and Latino students admitted to Michigan, it is scarcely mentioned that other white students are also admitted with SAT scores or GPAs lower than those of the plaintiffs (and lower than those of rejected minority applicants). Nor is much attention paid to the other racialized dimensions of Michigan's admissions policy that favor whites. The preference given to the children of alumni (including, incidentally, Patrick Hamacher, one of the plaintiffs challenging Michigan) disproportionately benefits whites, as does the enhancement given for candidates from Michigan's predominantly white Upper Peninsula, and the points awarded based on the quality of the candidate's high school and curriculum.

Opponents of affirmative action have spent the past two weeks repeating what seems to be their main, patronizing argument: that race-neutral admissions are better for racial minorities because affirmative action stigmatizes its beneficiaries as inferior (while at the same time denying their own agency in perpetuating such stereotypes). But the "stigma" is one-sided. It isn't applied to legacy admits; and it isn't applied to white Anglo Saxon Protestant men admitted to universities before the 1970s. Until affirmative action kicked in, these groups had a virtual lock on admissions at selective institutions because white women, blacks, Asians, and Latinos were either excluded from selective institutions altogether or were admitted in token numbers. Yet one never hears that this de facto affirmative action has "stigmatized" white males.

The tragic irony is that the 14th Amendment, the basis of the Michigan lawsuit, was conceived to rectify the enormous burdens of African-Americans who had just emerged from slavery. Now it has been twisted into a weapon against policies that have modestly uplifted blacks and other racial minorities. The Supreme Court's jurisprudence no longer recognizes the difference between policies that benefit and those that harm historically oppressed groups. Ironically, it was the 1978 Bakke v. Regents of the University of Californiadecision—the Supreme Court case that launched the university admissions policies now under attack—that first unraveled this distinction.

It is unfortunate that so much energy has been spent trying to eradicate programs that seek to bridge the abyss between this country's promise of opportunity and the depressing reality that we still live in a society in which one's life chances, opportunities, and experiences are significantly shaped by race. Studies repeatedly document the continued pervasiveness of discrimination in housing, employment, health care, and in the criminal justice system, and the persistence of racial segregation in elementary and secondary education. President Bush and others who oppose affirmative action may well preach "colorblindness," but really they are just willfully blind to the continuing relevance of race.

Elise Boddie is an assistant counsel at the NAACP Legal Defense & Educational Fund, which represents African-American and Latino students in the case challenging affirmative action at the University of Michigan.