On April 22, the U.S. Supreme Court upheld a Michigan law that banned the use of race as a factor in college admissions. The ruling came about a month ahead of the 60th anniversary (May 17) of the court's historic Brown v. Board of Education decision, which declared separate public schools for black students and white students unconstitutional.
U. of I. educational historian James D. Anderson recently discussed the legacy of the Brown ruling and the affirmative action decision with News Bureau education editor Sharita Forrest. Anderson is the Gutgsell Professor of educational policy studies in the College of Education and a member of the National Academy of Education.
What is your reaction to the Supreme Court ruling, and what impact is upholding Michigan's ban on affirmative action in college admissions likely to have?
Since the Bakke decision in 1978, the Supreme Court made it clear that affirmative action on the part of universities is voluntary, and they are not mandated by law to have it. Therefore, if voters in a state decide not to have affirmative action, that is consistent with a series of rulings by the Supreme Court, such as Grutter v. Bollinger, the most recent case allowing race to be one of several factors in college admissions.
I thought the counter-argument in the Michigan case was a really interesting one. As I understood the case, they were saying that there are other forms of preferential treatment at the University of Michigan, such as legacy admissions. Legacy admits, which provide a leg up in college admissions to applicants who are the offspring of alumni, can be accessed with the university's approval.
To be sure, Michigan would adopt the same policy regarding the use of race in admissions were it not prohibited by the state's new constitution provision. By contrast, students of color and female students would actually have to change the state constitution to obtain the same kind of access and equity as legacy admits. Thus, I believe that part of the argument on behalf of the plaintiffs in Schuette v. Coalition to Defend Affirmative Actionis that the consideration of race and gender as part of the admissions process is subjected to a more draconian standard and places a much heavier and more selective burden on race and gender than on legacy.
As Richard Khalenberg demonstrated in the book "Affirmative Action for the Rich" (Columbia University Press, 2007), while legacy admits disadvantage students of color, they greatly benefit white students.
I think there are about eight states that have banned affirmative action by popular referenda - California, Florida, Michigan and Washington among them. And those legislative bans exist in states where it's relatively easy to change state law through popular referenda. I don't think you can do that in Illinois; at least it would be much more complicated, requiring super majorities that seem highly unlikely.
California is thinking about putting a referendum on the ballot for the midterm elections to overturn its ban on affirmative action, but there's not enough support at this point.
Some critics of the Supreme Court's decision to uphold Michigan's ban suggest that it might open the door for other legislation that will jeopardize equal opportunity protections. Do you foresee that happening?
No. In some ways the decision is status quo. Some states have outlawed the use of affirmative action in admissions since California passed Proposition 209 in 1996. The state of Washington has banned affirmative action for quite some time. Michigan was simply the newest kid on the block. I don't think these bans will open the door to anything else. However, whenever affirmative action goes to the Supreme Court, the court increasingly constrains the ways in which it can be applied.
That was the ironic thing about Grutter vs. Bollinger (a 2003 landmark case, in which the Supreme Court upheld the affirmative action admissions policy of the University of Michigan Law School). The plaintiffs actually won their case, and the Supreme Court ruled that affirmative action was constitutional.
But in the years following the Grutter decision, minority enrollments dropped across the country. I think there's a chill that comes with that type of ruling, where conservative constraints are placed on affirmative action. Institutions seem to feel that the safest way to protect themselves from litigation is to do as little as possible.
What's been the legacy of Brown v. Board of Education? Has it fulfilled its promise?
There's hardly anyone in education that feels that Brown has come close to fulfilling its promise. And the latest research is even more dismal. The Civil Rights Project from the University of California-Los Angeles did a major study of public school education in New York this year and found that New York's public schools are among the most racially segregated schools in the country.
Most of the studies are showing very sharp resegregation in schools both North and South. That resegregation is attended by concerns about the achievement gap, especially in the very populations of minority children that were supposed to benefit from the Brown decision.
There was a period, roughly from the late-1960s through the late-1980s, in which there was substantial desegregation, particularly in the southern states, and with that, there were also significant increases in minorities' achievement scores. But those trends started to reverse in the 1990s and reversed even more sharply as we moved into the 21st century.
And why has that resegregation occurred? Is providing school choice, such as charter schools, likely to change this?
The primary driver of resegregation has been some very conservative Supreme Court rulings maintaining that school systems across the nation are unitary and no longer have the obligation to pursue strategies of desegregation. Significantly, even when Seattle and Louisville, Kentucky, implemented voluntary school desegregation plans, the Supreme Court held that the plans were unconstitutional.
For a long time, roughly from 1955 to the 1980s, federal courts held that the system of segregation must be completely dismantled, and thus held all the states to a much higher standard. But the Supreme Court made pivotal rulings in the 1990s that released states from those standards. In the Louisville and the Seattle cases, the court pretty much said there are no continuing effects of past discrimination, so school districts and states no longer have an obligation to dismantle all vestiges of past discrimination.
The Gary Orfield studies and other studies of school resegregation find that charter schools in particular are much more part of the problem than a solution to the goal of public school desegregation.
What lessons can the rest of American public schools draw from peer institutions where minority achievement is increasing? And, in higher education, what can be done to address racial achievement gaps?
Students who take a much more demanding curriculum have higher achievement rates, higher test scores. But most students don't get that curriculum. Our society is very segmented in that way. Even on the international tests where we don't do very well, if our students that take advanced placement and other rigorous courses are disaggregated, we find that with respect to attainment in math and science they're ranked at the top of the world.
While the pool of qualified applicants has increased slightly, there are also sharp declines in college applications. We have a number of studies now that demonstrate that a significant proportion of high achieving low-income and minority students who have the academic qualifications for admission to elite institutions or comprehensive research universities don't apply. The reasons are complicated, including the obstacle of skyrocketing tuition costs.
They do not view highly competitive institutions as a viable option, so we've seen a significant drop-off in applications from high achieving low-income and minority students and thus a reduction of opportunity to diversify enrollment. Part of the responsibility of universities such as Illinois and Michigan is to have better outreach to those students. Minority students, who also tend to be from lower income families, and students from working-class families just can't afford to go to elite institutions without significant financial aid support, so many, believing that they can't afford it, don't apply.
In the wake of criticism about upholding Michigan's affirmative action ban, the Supreme Court responded that the ruling only determined where the issue of affirmative action should be decided - at the polls as opposed to in the courts. Where is the best place to decide this issue?
I don't think you want a popular referendum deciding any civil rights cases. If you look at them historically, we didn't even get a Supreme Court ruling to outlaw the bans on interracial marriage until 1967. If you had taken a popular vote in 1967 as to whether interracial marriage should be outlawed, the majority of Americans would have voted against it, especially in those 17 states that outlawed interracial marriage until the Supreme Court's ruling in Virginia v. Loving (1967).
Similarly, those states and others would have voted against the Civil Rights Bill of 1964, the Voting Rights Act of 1965 and the Fair Housing Act of 1968. If there is any lesson that we can learn from our history, it's that a popular vote for civil liberties is more likely to be regressive than progressive.
Affirmative Action like other civil liberties is best deliberated in a process that respects majority rule while understanding the inherent tyranny of majority rule and, above all else, is dedicated to the proposition of equal rights for all citizens. We should always remember that all of the Jim Crow laws were decided in the voter polling places and were it not for the court's ruling in Brown v. Board of Education, we might still have legally mandated racial segregation in many parts of the country.