Friday, June 29, 2007

Brown's Legacy Lives, but Barely

By Charles J. Ogletree Jr. June 29, 2007
YESTERDAY, the US Supreme Court issued its long-anticipated decision about the constitutionality of policies in Seattle and Louisville that promote racial integration in schools. In a decision that can best be characterized as deeply divided, the court struck down these school districts' plans, concluding that they violated some students' right to equal protection, yet left open the opportunity for school districts to use some race-conscious measures to combat racial segregation. A majority of justices affirmed long-held principles that achieving racial diversity and avoiding racial isolation in schools are compelling state interests.
While this decision is neither as damaging nor as far-reaching as many feared it might be, there is no cause for celebration. This ruling removed a successful tool for combating the racial segregation that is a ubiquitous feature of the nation's public schools. Its immediate effect will be to require local educators to refine their voluntary school desegregation plans. It should not prevent school districts from undertaking new plans designed to ameliorate racial segregation.
As Justice Stephen Breyer wrote in his blistering dissent, this decision "upsets settled expectations, creates legal uncertainty, and threatens to produce considerable further litigation, aggravating race-related conflict." Judge John Paul Stevens went further, noting the "cruel irony" in the majority opinion's evocation of Brown v. the Board of Education as justification for its position, proclaiming that "it is my firm conviction that no Member of the Court that I joined in 1975 would have agreed with today's decision."
In fact, the perplexing nature of this decision becomes clear when considered in light of rulings from lower-court judges. Judge Alex Kozinski, a conservative member of the 9th Circuit Court of Appeals, ruled earlier in favor of the Seattle plan, noting that it "does not segregate the races; to the contrary, it seeks to promote integration. There is no attempt to give members of particular races political power based on skin color. . . . The program does not use race as a criterion, but only to ensure that the population of each public school roughly reflects the city's racial composition."
Closer to home, the First Circuit in Comfort v. Lynn ruled in favor of the school district's plan, determining it did not violate the 14th amendment precisely because it was designed to be inclusive, rather than to exclude. In affirming the "compelling interest" of racially diverse schools, Chief Justice Michael Boudin wrote: ". . . the negative consequences of racial isolation that Lynn seeks to avoid and the benefits of diversity that it hopes to achieve are rooted in the same central idea: that all students are better off in racially diverse schools." The Supreme Court left the decision undisturbed.
If the fractured nature of yesterday's 5-to-4 decision was hardly unexpected, Justice Anthony Kennedy's concurring opinion does contain some small, and welcome, affirmation of the principles it articulated 53 years ago in Brown v. Board of Education. While agreeing with the majority that the plans illegally used race to classify students, he nonetheless stressed that "the decision today should not prevent school districts from continuing the important work of bringing together students of different racial, ethnic, and economic backgrounds."
Kennedy's opinion refuses to embrace the four-person plurality view that race cannot be considered in seeking to achieve educational equality. Now it is up to lawyers, civil rights and educational advocates, school districts, and school boards to craft original, creative, and constitutional remedies to combat racial isolation and foster diversity in schools and neighborhoods.
Many people across this nation who are participating in the voluntary school desegregation program, METCO, have internalized Brown v. Board of Education's values. They have experienced the benefits of racially diverse classrooms.
Historian George Packer once wrote: "We will have a more just society as soon as we want one. Throughout American history this desire keeps rising to the surface, even at the unlikeliest moment."
We find ourselves at such a moment. The unfortunate, but perhaps empowering, lesson of these rulings is that it will be up to the people, collectively, to determine what sort of schools we maintain and what moral lessons to teach there. Only time will tell whether the principles embraced in Brown continue to guide us in achieving racial integration, diversity, and equal opportunity in quality education.
Charles J. Ogletree Jr. is a professor at Harvard Law School and founding and executive director of the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School.

Civil Rights Project/Proyecto Derechos Civiles response to Brown

The Supreme Court has issued its first major decision on school desegregation in twelve years, a decision affirming the goal of integrated education as a compelling interest but rejecting the means that many school districts use to maintain some integration in a rapidly resegregating society. This decision is another step backward following the Court's three decisions limiting mandatory desegregation in the l990's. In a country which now has more than 40% nonwhite students and millions in segregated schools that have been proven to be unequal in the statistics produced by the Administration's own No Child Left Behind Act, the Court has taken the extraordinary step of rejecting modest efforts that have produced desegregated education in two districts that have voluntarily implemented such policies. I believe this decision will be seen as shameful and very hard to explain in the future.

The decision, however, could have been worse and leaves some opportunity to find other ways to indirectly pursue diverse schools. Some techniques such as school site selection, minor boundary adjustments and active, targeted recruitment for schools of choice are still permitted in voluntary plans. This would be useful mostly in small districts or areas with minor pockets of segregation. It would be permissible to consider race as one of multiple factors in a student assignment plan when considering each individual application. These techniques are more burdensome to school districts and will, according to research and experience, be less effective, but they can limit the extent of resegregation and preserve some diversity that would otherwise be lost. There is a great deal of work to be done in helping communities figure out the best path from here, evaluating what happens in affected districts, and answering some of the questions and factual errors in some of the opinions.

The battle over race and educational opportunity in American society has been very actively waged for generations. It is not over. This Court, by the narrowest of margins, has rejected policies supported unanimously by earlier Courts—policies that Justices earlier required districts to implement. Our pledge is two-fold: 1) to help districts achieve what can be achieved in this divided and somewhat muddled set of decisions and 2) to help prepare the research and advocacy groundwork and agenda, as the researchers at Howard University did so long ago, for future Courts and future decisions that will bring back to life a vivid and effective vision of the goal of Brown v. Education. We are very pleased to join with research centers across the U.S. in saying that though this decision is a serious failure by the Supreme Court, we will respond to the challenge and support the vision of Brown which promised to bring down the walls of racial separation and inequality in this nation's schools.
Gary Orfield
Resources available on the CRP website (
Joint Statement from Nine University-Based Civil Rights Centers:
Spanish-language statement:
Summary of Social Science Evidence Regarding the Benefits of Integrated Schools and Harms of Segregated Schools:
Segregation Fact Sheet:

ARC responds to controversial Supreme Court segregation ruling

Many organizations responded to today's historical decision by the Supreme Court to reject the use of race in creating programs to enhance racial diversity in public schools. Read here why this ruling was both a blow to racial justice movements and a re-assertion of the importance of race as a factor in school organization. ***The Applied Research Center is dismayed by today’s decision from the United States Supreme Court to overturn lower court rulings allowing the districts of Seattle, Washington and Louisville, Kentucky to use race in making school assignments. This decision is especially disappointing, given that the majority of the Court affirmed race as an important factor to consider in educational equity and school integration. For more than half a century, the moral compass of 1954’s Brown v. Board of Education has guided our nation toward integration and equal treatment. The Court's conservative bloc has led us backwards.
The 5-4 decision included Justices Roberts, Thomas, Scalia, Kennedy, and Alito. Chief Justice John Roberts, writing the majority opinion, said that schools should use factors other than race to achieve racial inclusion. Roberts wrote: “[In Brown] it was not the inequality of facilities but the fact of legally separating children based on race on which the Court relied to find a constitutional violation.”
This is a disingenuous use of Brown against desegregation efforts. As they were 50 years ago, racial segregation and unequal facilities remain closely linked. In California, for example, a state that ranks number one in school segregation among Blacks and Latinos, 75 percent of high school seniors of color will not complete the courses they need to enroll in the state’s public colleges.
Brown has been relentlessly attacked by its opponents for five decades. As they worked to repeal and rewrite the mandate through constant legal and legislative challenges, segregation has been on the rise. Schools are now more segregated than they were 30 years ago. The need for race-explicit integration programs is as urgent now as ever.
We appreciate the dissenting opinion by Justice John Paul Stevens, who wrote that the majority opinion "reverses course and reaches the wrong conclusion. In doing so, it distorts precedent, it misapplies the relevant constitutional principles, it announces legal rules that will obstruct efforts by state and local governments to deal effectively with the growing resegregation of public schools, it threatens to substitute for present calm a disruptive round of race-related litigation." We also note that Justice Anthony Kennedy, although he joined the majority, validated the idea that race can be a factor if used narrowly to ensure integrated schools.
Racial segregation in schools results from discrimination against people of color in housing and employment. Sharply divided living and working conditions produce similarly divided educational systems. It is folly to accept the majority’s assertion that a situation created through highly calculated social engineering can somehow be reversed through spontaneous individual choices about where to send one’s child to school.
The strength of Brown was its insistence on explicitly confronting race as a critical factor shaping access to quality education। The conservative justices have corroded this critical tool। Although the nation’s highest court may be divided on this issue, communities, school administrators, and elected officials must rededicate themselves to addressing the discriminatory policies that continue to leave students of color separate and unequal.

A Blow to Brown

The Supreme Court enables the resegregation of schools by race.
Friday, June 29, 2007; A20
HALF A CENTURY ago, in Brown v. Board of Education, a unanimous Supreme Court ruled that the Constitution forbids school systems from maintaining racially segregated schools. Yesterday, a splintered Supreme Court, invoking the language of Brown but ignoring its context and undermining its intent, ruled that the Constitution forbids school systems from taking certain steps to maintain integrated schools. The impact of the decision may be softened by Justice Anthony M. Kennedy's refusal to go along with what he called "an all-too-unyielding insistence that race cannot be a factor" and by his willingness to let schools use "race-conscious measures," including drawing school attendance zones, selecting building sites, and recruiting students and faculty. But the court's action, at a time when the nation's schools are increasingly resegregating, threatens voluntary efforts to achieve the integrated public schools that were the promise of Brown. As Justice Stephen G. Breyer wrote for the four dissenters, "This cannot be justified in the name of the Equal Protection Clause."
The ruling involved school assignment plans in Seattle and Louisville. Seattle for the most part let students attend their high school of choice but took race into account when a school's racial mix was out of balance with the school population as a whole. Louisville's K-12 plan, which emphasized neighborhood schools and student choice but similarly took race into account in certain circumstances, was adopted when the system was under a federal court's desegregation order. It's a strange view of the Constitution that requires a desegregation plan one day and prohibits it the next.
Four members of the court seem to disagree, but we believe school systems have a compelling interest in operating schools that are as diverse as possible and in taking reasonable steps to overcome patterns of residential segregation that would otherwise frustrate that goal. The court has recognized diversity as a compelling interest in the context of higher education, as recently as in its 2003 ruling upholding an affirmative action program at the University of Michigan Law School. If anything, the argument for diversity is even more compelling for younger children, whose attitudes about race are being formed and future educational opportunities determined. Moreover, the potential harm to students in this situation is less than in higher education, when admission to an elite institution may be at stake. The plans at issue in these cases did not involve admission to merit-based or select programs such as magnet schools.
Assigning pupils to schools even in part on the basis of race is not a pleasant or desirable approach; it certainly shouldn't be the tactic of first resort. But the harm to white students here cannot legitimately be compared to the harm to black schoolchildren that animated the court in Brown. Justice Kennedy's concurring opinion correctly took the four-justice plurality to task for its glib assertion, in the opinion written by Chief Justice John G. Roberts Jr., that the "way to stop discrimination on the basis of race is to stop discriminating on the basis of race।" As Justice Kennedy noted, "Fifty years of experience since Brown। . . should teach us that the problem before us defies so easy a solution." There is reason to doubt whether the leeway that Justice Kennedy would give school systems would be adequate for the task, and, even if it were, to worry how long that uneasy equipoise would hold on a court tilting as far to the right as this one is.

Justices Limit the Use of Race in School Plans for Integration

June 29, 2007
Justices Limit the Use of Race in School Plans for Integration
WASHINGTON, June 28 — With competing blocs of justices claiming the mantle of Brown v. Board of Education, a bitterly divided Supreme Court declared Thursday that public school systems cannot seek to achieve or maintain integration through measures that take explicit account of a student’s race.
Voting 5 to 4, the court, in an opinion by Chief Justice John G. Roberts Jr., invalidated programs in Seattle and metropolitan Louisville, Ky., that sought to maintain school-by-school diversity by limiting transfers on the basis of race or using race as a “tiebreaker” for admission to particular schools.
Both programs had been upheld by lower federal courts and were similar to plans in place in hundreds of school districts around the country. Chief Justice Roberts said such programs were “directed only to racial balance, pure and simple,” a goal he said was forbidden by the Constitution’s guarantee of equal protection.
“The way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” he said. His side of the debate, the chief justice said, was “more faithful to the heritage of Brown,” the landmark 1954 decision that declared school segregation unconstitutional. “When it comes to using race to assign children to schools, history will be heard,” he said.
The decision came on the final day of the court’s 2006-7 term, which showed an energized conservative majority in control across many areas of the court’s jurisprudence.
Chief Justice Roberts’s control was not quite complete, however. While Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr. joined his opinion on the schools case in full, the fifth member of the majority, Justice Anthony M. Kennedy, did not. Justice Kennedy agreed that the two programs were unconstitutional. But he was highly critical of what he described as the chief justice’s “all-too-unyielding insistence that race cannot be a factor in instances when, in my view, it may be taken into account.”
In a separate opinion that could shape the practical implications of the decision and provide school districts with guidelines for how to create systems that can pass muster with the court, Justice Kennedy said achieving racial diversity, “avoiding racial isolation” and addressing “the problem of de facto resegregation in schooling” were “compelling interests” that a school district could constitutionally pursue as long as it did so through programs that were sufficiently “narrowly tailored.”
The four justices were “too dismissive” of the validity of these goals, Justice Kennedy said, adding that it was “profoundly mistaken” to read the Constitution as requiring “that state and local school authorities must accept the status quo of racial isolation in schools.”
As a matter of constitutional doctrine and practical impact, Justice Kennedy’s opinion thus placed a significant limitation on the full reach of the other four justices’ embrace of a “colorblind Constitution” under which all racially conscious government action, no matter how benign or invidious its goal, is equally suspect.
How important a limitation Justice Kennedy’s opinion proves to be may become clear only with time, as school districts devise and defend plans that appear to meet his test.
Among the measures that Justice Kennedy said would be acceptable were the drawing of school attendance zones, “strategic site selection of new schools,” and directing resources to special programs. These would be permissible even if adopted with a consciousness of racial demographics, Justice Kennedy said, because in avoiding the labeling and sorting of individual children by race they would satisfy the “narrow tailoring” required to meet the equal protection demands of the 14th Amendment.
Justice Stephen G. Breyer, who wrote the principal dissenting opinion, was dismissive of Justice Kennedy’s proposed alternatives and asserted that the court was taking a sharp and seriously mistaken turn.
Speaking from the bench for more than 20 minutes, Justice Breyer made his points to a courtroom audience that had never seen the coolly analytical justice express himself with such emotion. His most pointed words, in fact, appeared nowhere in his 77-page opinion.
“It is not often in the law that so few have so quickly changed so much,” Justice Breyer said.
In his written opinion, Justice Breyer said the decision was a “radical” step away from settled law and would strip local communities of the tools they need, and have used for many years, to prevent resegregation of their public schools. Predicting that the ruling would “substitute for present calm a disruptive round of race-related litigation,” he said, “This is a decision that the court and the nation will come to regret.”
Justices John Paul Stevens, David H. Souter and Ruth Bader Ginsburg signed Justice Breyer’s opinion. Justice Stevens wrote a dissenting opinion of his own, as pointed as it was brief.
He said the chief justice’s invocation of Brown v. Board of Education was “a cruel irony” when the opinion in fact “rewrites the history of one of this court’s most important decisions” by ignoring the context in which it was issued and the Supreme Court’s subsequent understanding of it to permit voluntary programs of the sort that were now invalidated.
“It is my firm conviction that no member of the court that I joined in 1975 would have agreed with today’s decision,” Justice Stevens said. He did not mention, nor did he need to, that one of the justices then was William H. Rehnquist, later the chief justice, for whom Chief Justice Roberts once worked as a law clerk.
Justice Clarence Thomas was equally pointed and equally personal in an opinion concurring with the majority.
“If our history has taught us anything,” Justice Thomas said, “it has taught us to beware of elites bearing racial theories.” He added in a footnote, “Justice Breyer’s good intentions, which I do not doubt, have the shelf life of Justice Breyer’s tenure.”
The justices had been wrestling for over a year with the two cases. It was in January 2006 that parents who objected to the Louisville and Seattle programs filed their Supreme Court appeals from the lower court decisions that had upheld the programs.
The Louisville case was Meredith v. Jefferson County Board of Education, No. 05-915, filed by the mother of a student who was denied a transfer to his chosen kindergarten class because the school he wanted to leave needed to keep its white students to stay within the program’s racial guidelines.
The Seattle case, Parents Involved in Community Schools v. Seattle School District No. 1, No. 05-908, was filed by a group of parents who had formed a nonprofit corporation to fight the city’s high school assignment plan.
Because a single Supreme Court opinion resolved both cases, the decision carries only the name of the Seattle case, which had the lower docket number.
The appeals provoked a long internal struggle over how the court should respond. Months earlier, when Justice Sandra Day O’Connor was still on the court, the justices had denied review in an appeal challenging a similar program in Massachusetts. With no disagreement among the federal appellate circuits on the validity of such programs, the new appeals did not meet the criterion the court ordinarily uses to decide which cases to hear. It was June of last year before the court, reconfigured by the additions of Chief Justice Roberts and Justice Alito, announced, over the unrecorded but vigorous objection of the liberal justices, that it would hear both appeals.
By the time the court ruled on Thursday, there was little suspense over what the outcome would be. Not only the act of accepting the appeals, but also the tenor of the argument on Dec. 4, gave clear indications that the justices were on course to strike down both plans.
The cases were by far the oldest on the docket by the time they were decided; the other decisions the court announced on Thursday were in cases that were argued in March and April. What consumed the court during the seven months the cases were under consideration, it appears likely, was an effort by each side to edge Justice Kennedy closer to its point of view.
While it is hardly uncommon to find Justice Kennedy in the middle of the court, his position there this time carried a special resonance. He holds the seat once occupied by Justice Lewis F. Powell Jr. who, 29 years ago to the day, announced his separate opinion in the Bakke case. That solitary opinion, rejecting quotas but accepting diversity as a rationale for affirmative action in university admissions, defined the law for the next 25 years, until the decision was refined and to some degree strengthened in the University of Michigan Law School decision.
Justice Kennedy was a dissenter from that 2003 decision। But, surprisingly, he cited it on Thursday, invoking it to rebut the argument that the Constitution must be always be, regardless of context or circumstance, colorblind।
American Association for Affirmative Action
Calls Supreme Court Decision on School Desegregation Cases
“A Blow to Equal Opportunity in Education”
The Court’s decision to strike down the Louisville, KY and Seattle School desegregation plans is a tragic blow to the spirit of Brown v। Board of Education

For Immediate Release:
June 28, 2007
Contact: Shirley Wilcher (240) 893-9475
Joyce Pratt (609) 748-0936

Washington – The American Association for Affirmative Action (AAAA), an organization of equal employment opportunity (EEO), diversity and affirmative action professionals founded in 1974, condemned the U.S. Supreme Court’s 5-4 decision in Meredith v. Jefferson County Board of Education (Louisville) and Parents Involved in Community Schools v. Seattle School District (Seattle) as “a tragic blow to the spirit of Brown v. Board of Education.” “Our nation’s school districts must be encouraged to promote integration and equal opportunity for all students. Severely limiting the use of race in school desegregation efforts will have a chilling effect on such efforts” said AAAA president ReNee S. Dunman.

“We believe that those programs were consistent with the Equal Protection Clause of the 14th Amendment, which is intended to bring us together across lines of difference and to provide opportunities, not deny them. The Court’s decision, unfortunately, limits the ability of local school districts to tailor programs to the realities on the ground,” she added.

“In Grutter v. Bollinger, the University of Michigan decision in 2003, Supreme Court Justice Sandra Day O’Connor suggested that we should not need affirmative action in higher education in 25 years. The only way that that prediction has the remotest chance of becoming reality is if we strengthen our elementary and secondary schools to enable all children to have a quality education. Today’s decision may make this prediction less likely,” commented Ms. Dunman. In the Bakke decision, Justice Blackmun wrote that in order to get beyond racism, we must first take account of race. The Court under Alito and Roberts has set back the progress of America’s children by ignoring the reality of race in this nation.

Integrated education provides benefits not only to minority students but also to majority students and the population at large. Research shows that the critical thinking skills of all students improve in racially diverse classrooms. Diverse learning opportunities make all students better problem solvers and communicators, and kids in diverse schools are less likely to develop racial stereotypes or prejudice. Without such integration, we face a generation of young adults who will be unprepared in an increasingly diverse global economy and nation.

“In our view, this is a reminder of how important it is that the Senate closely review all nominees to the federal courts, and confirm only those judges that show a commitment to fulfilling the promise of our Constitution—including the Equal Protection Clause. We plan to work with the U.S. Congress which, like the Court, has the authority and the responsibility to fulfill the promise of Brown vs. Board of Education and the 14th Amendment to the Constitution”, added Ms. Dunman.

AAAA stands committed to partnering with members of the civil rights community and local leaders in Louisville, Seattle, and other communities around the country. Together we will pursue the crucial goal of diverse, inclusive, quality education for all of our children.

Founded in 1974, the American Association for Affirmation Action (AAAA) is a national not-for-profit association of professionals working in the areas of affirmative action, equal opportunity, and diversity। AAAA helps its members to be more successful and productive in their careers. It also promotes understanding and advocacy of affirmative action to enhance access and equality in employment, economic and educational opportunities.

888 16th Street, NW, Suite 800 * Washington, D.C. 20006 *202-349-9855 ex 1857 *
800-252-8952 * Fax: 202-355-1399 *

Friday, June 22, 2007

U-M starts new set of aid awards

U-M starts new set of aid awards
They replace those based on gender, race
Friday, June 22, 2007
BY DAVE GERSHMAN News Staff Reporter
In another move to comply with a statewide ban on some forms of affirmative action, the University of Michigan has eliminated scholarships that it awarded to students partly on the basis of female gender or racial minorities.
U-M's central financial aid office discontinued the Scholar Recognition Award and Michigan Scholar Award - recruitment scholarships that are given to several hundred students a year - because race was considered as an eligibility criteria. They were replaced with new scholarships that give consideration to socioeconomic status and other data. The office gives out $2 million in scholarships a year to entering freshmen.
Other schools and colleges at U-M give out $35 million in mostly merit-based scholarships, but they also reviewed financial aid programs and made changes where needed to comply with the law, said U-M Provost Teresa Sullivan.
"Our office of general counsel spent quite a lot of time reviewing this,'' Sullivan said Thursday as she provided an overview of scholarship changes tied to Proposal 2. "Typically, the change in criteria has moved towards socioeconomic status, or some other form of underrepresentation, such as being a first-generation college student.''
Pamela Fowler, director of the financial aid office, said it's too soon to determine how the revisions will affect the makeup of the student body because the changes were implemented in the midst of the admissions cycle. She said she did not believe opportunities for women and underrepresented minorities - black, Hispanic and Native American students - have changed. She said race was a factor in a small number of the scholarship dollars her office administered.
Shanta Driver, national spokesperson for BAMN, a pro-affirmative action group challenging the ban in court, predicted a "tremendous decline'' in scholarships for poor black and Hispanic students because there are many more poor white students in Michigan. Driver said that using socioeconomic status has not worked to maintain diversity at public universities in California, which passed a similar ban on affirmative action.
"A lack of financial aid is the single highest reason that black students do not come to a University of Michigan and stay,'' said Driver.
Driver said U-M has other options, such as offering scholarships that consider whether students come from urban areas like Detroit, Flint and Saginaw.
U-M stopped awarding scholarships with race or gender as criteria on Dec. 22, after legal wrangling over the implementation of Proposal 2, the state constitutional amendment prohibiting race and gender preferences in public education, public hiring and public contracting.
By that date, 183 Scholar Recognition Awards that pay full tuition had been offered to in-state students (80 percent accepted), and 144 Michigan Scholar Awards valued at $15,000 were offered to out-of-state students (40 percent accepted). Sullivan said no students will lose financial aid because of the legal review; all prior contracts will be honored.
By March, U-M had begun awarding the two new scholarships:
The Michigan Tradition Award is worth $10,000 a year for four years and is awarded to students from "underrepresented high schools and neighborhood clusters,'' areas that may be disadvantaged and traditionally do not send many students to U-M. Eligible students must be the first in their family to go to college, or come from a single-parent household, or come from a family earning an income of less than $50,000.
The Michigan Experience Award is worth $10,000 each year for four years and is given to students who participated in state or federal early-awareness or college-readiness programs typically based on socioeconomic status, such as Upward Bound, Talent Search and Gear-up।

Tuesday, June 19, 2007

Now and Then: Minorities and Michigan
The percentage of African American, Hispanic and Native American students admitted to the University of Michigan Law School for next fall fell from 39.6 percent for those students whose applications were considered before enactment of a state law banning race-based preferences in December to 5.5 percent thereafter. While critics of affirmative action read the numbers as proof of the unfair impact of preferences based on race, advocates for affirmative action said the numbers were early indicators of just how damaging the law will be.
“We believe this is the first clear evidence of how disastrous Proposal 2 will be,” said George Washington, lead lawyer for By Any Means Necessary, a Detroit-based group that has sued to overturn Proposal 2, a ballot initiative approved by 58 percent of Michigan voters last fall barring public colleges from using affirmative action in admissions. “As in California and in Texas, it shows up first in the law schools — and most dramatically.”
“I think the numbers speak for themselves,” added Maya Simmons, a third-year Michigan law student and immediate past chair of the Black Law Students Alliance there. “What we feared most is what the results of Prop 2 are.”
The overall picture for underrepresented minority admissions at Michigan Law School this year does not differ dramatically from the year before: 192 of 869, or 22.1 percent, of minority applicants gained acceptance in the 2006 cycle, while 183 of 915 minority applicants, or 20 percent, were admitted for fall 2007.
But it’s the timing of the admissions decisions that’s striking: Out of 396 completed applications from minority students considered on or before December 28, the day before the law took effect, 157 were accepted. From December 29 on, just 26 minority student applications were accepted — despite the fact that admissions officers considered 476 applications, a greater number of minority student applications than those considered before the law’s enactment. (Michigan’s law school has a rolling admissions policy).
In comparison, the acceptance rate for all students, including white and Asian American students and members of underrepresented minority groups, rose from 19.5 percent before December 29 to 22.8 percent after the law went into effect. (The total percentages of Michigan law applicants of all races admitted throughout the entire admissions cycle stayed relatively constant from the 2006 to 2007 cycles, at about 20 to 21 percent).
“I am shocked and appalled that for some reason this appears to be a surprise,” said ReNee S. Dunman, president of the American Association for Affirmative Action. “This is a repeat of the aftermath of Proposition 209 [ending affirmative action in college admissions] in California in ‘96,” she said, pointing to the seven years it took for minority enrollments to rebound there post-Proposition 209. “Have we learned nothing?”
Or, as Michael A. Olivas, a professor at the University of Houston who teaches higher education and immigration law, wrote in an e-mail in response to the statistics Monday: “DUHHHH.”
Yet, the director of admissions at the University of Michigan Law School said Monday that rhetoric regarding an impending or even preordained disaster is misplaced, with the disparities in minority admissions from fall to spring reflecting concentrated efforts on the part of admissions staff and volunteers to encourage top candidates to apply early.
“There were differences, but it’s not going to be as stark as these numbers suggest,” said Sarah C. Zearfoss, assistant dean and director of admissions. “Starting in about August, we started recruiting people, including minorities, asking the strongest candidates we could find ... to apply early, so a huge percentage of those 400 applicants from the pre-Prop 2 were very, very strong minority applicants.”
“[By Any Means Necessary] says what this means is we won’t be able to admit anyone who’s a minority under Prop 2 and it’s catastrophic,” Zearfoss said. “That’s not what it means. What it means is a lot of the people in the 157 group [of minorities admitted by late December] are people who might have been in the 26 group [of minority students admitted after that] too.”
“That’s not going to be 100 percent of it; some of the people I admitted pre-Prop 2 were people I wouldn’t have been able to admit after,” Zearfoss continued. “Realistically, Prop 2 is going to have some effect on the overall number of minorities that we admit, but there’s a couple reasons why it’s pretty hard to know exactly what kind of effect and whether it’s reasonable to think the proportion will be more like the post-Prop 2 activity this year or more like the overall percentage this year. I think that it’s going to be more like the overall percentage.”
“Maybe some of the better-qualified people applied early, but not that many,” Washington of By Any Means Necessary replied Monday. “Half of the class applied after the deadline or at least their applications were considered after that, and you’re getting 5 percent acceptance rates. If you have anything remotely like that for a full year, you will see disastrous consequences.”
“The numbers are obviously disappointing but I wouldn’t go so far as to say that the long term effects will be ‘disastrous,’ ” Christal Phillips, a third-year law student and political action chair for Michigan’s Black Law Students Alliance last year, wrote in an e-mail. “I have complete faith that the admissions office is doing the best that they can to admit as many qualified and talented minority students who deserve to be here.”
This year’s admissions statistics are, however, ripe for scrutiny on at least two different levels: On the one hand, the lower proportion of minority acceptances this spring relative to last — 5.5 percent this year as opposed to about 25 percent in spring 2006 — raises flags among affirmative action advocates that Proposal 2 signals the “resegregation” of Michigan’s public colleges.
And, on the other, the high proportion of minority acceptances by late December (with 157 of 396, or about 40 percent, of minority applicants admitted during that time frame this year, compared to 67 of 262, or 25.6 percent the year before) has fueled criticisms from affirmative action opponents that the admissions staff gave greater weight to race in this fall’s admissions cycle in anticipation of Proposal 2’s passage in November — a criticism Zearfoss flatly denies as false.
“Comparing the rates immediately before Proposal 2 was passed with the rates immediately after Proposal 2 was passed may not be fair,” said Roger Clegg, president and general counsel of the Center for Equal Opportunity, which opposes affirmative action. “The numbers in the fall last year may be skewed by the fact that the University of Michigan Law School was weighing race even more heavily than it had in years past in an effort to get in under the wire, before Proposal 2 was passed.”
“However, putting that aside, I would expect that the percentage of students who were getting racially discriminatory preferences in their favor would go down when those preferences stopped.” That doesn’t mean that those students won’t go on to lower-tier law schools or even to become successful lawyers, Clegg said — referencing research by Richard Sander, of the University of California at Los Angeles, finding that by admitting poorly qualified black applicants who would perform better at less prestigious institutions, top law schools actually do them a disservice.
“That’s the point, Clegg said, “that kind of discrimination should stop. And ... when that discrimination would stop, of course there are going to be lower admit rates to the University of Michigan.”
Elizabeth Redden
The original story and user comments can be viewed online at

Friday, June 8, 2007

AAAA Opposes New Efforts by Right Wing Groups to Use Immigration Legislation to Undermine Affirmative Action

For Immediate Release
June 8, 2007

Contact: Shirley J. Wilcher, 617-298-4156; 240-893-9475 (cell)
Joyce Pratt, 609-748-0936

AAAA Opposes New Efforts by Right Wing Groups to Use Immigration Legislation to Undermine Affirmative Action
Efforts to Exclude Immigrants Violates America’s Promise of Fairness and Equality

The American Association for Affirmative Action (AAAA), an organization of equal opportunity, diversity and affirmative action professionals, opposes efforts by the American Civil Rights Institute and other right wing groups to severely limit the scope of affirmative action laws by excluding new immigrants. “Affirmative action laws have historically included groups who have suffered discrimination on the basis of national origin,” said AAAA President ReNee Dunman. “To eliminate longstanding protections for those who come to this country seeking opportunity, fairness and equality is unconscionable,” she added. “This is a bold move to weaken all affirmative action laws that benefit women and persons of color.”

“Just as ‘Knowledge is power,’ so too is the lack of knowledge when this failing is used to further short-sighted ambitions. Members of opposition groups don’t mind exploiting the fact that many Americans are unaware that there are federal and state laws banning discrimination and racial preferences,” Dunman added. “Affirmative action is a remedy for past discrimination as well as a means of preventing current and future exclusionary practices. Affirmative action laws also specifically prohibit preferential treatment.”

This new anti-affirmative action effort is also aimed at one immigrant population in particular -- Hispanics. It is a fact that Hispanics, many of whom can trace their ancestry to the western territories before the United States existed, have historically suffered discrimination on the basis of national origin and race. Newly-arrived Hispanics, many of whom will confront these national origin-based stereotypes and biases, deserve to benefit from programs designed to remedy the effects of such discrimination. Discrimination, prejudice and bigotry on the basis of race, color or national origin are not simply relics of the past. They are current realities.
“We urge Congress to proceed with its deliberations and ignore this thinly-veiled effort to divide us and foment rancor against immigrant Hispanics and all beneficiaries of affirmative action,” added Ms. Dunman.


American Association for Affirmative Action.
888 16th Street, NW
Suite 800
Washington, DC 20006
202-349-9855 ex. 1857
Founded in 1974, the American Association for Affirmation Action (AAAA) is a national not-for-profit association of professionals working in the areas of affirmative action, equal opportunity, and diversity. We help our members to be more successful and productive in their careers. We promote understanding and advocacy of affirmative action to enhance access and equality in employment

Monday, June 4, 2007

Welcome to AAAA's New Blog "Affirm Act"

Welcome to the American Association for Affirmative Action's (AAAA) blog! This is an opportunity to discuss this often-misunderstood issue, to learn the linkage between affirmative action and equal opportunity and share your views on how to promote the principles of affirmative action and diversity at work, in business and in education. For more information about AAAA, go to