Affirmative action's evolution

How the debate has changed since 1970s.

Twenty-five years ago when the US Supreme Court issued its landmark affirmative- action decision in the Bakke case, Justice Thurgood Marshall wrote a separate opinion arguing for the necessity of using racial classifications to remedy historic discrimination against blacks.

He lost that fight by one vote, with only four of the nine justices agreeing that the Constitution permits the use of racial quotas and set-asides in such circumstances.

From that moment, the debate over affirmative action shifted in a fundamental way. Rather than black-white equality, the goal became diversity. Rather than empowering racial groups, the idea was to empower individuals.

Critics said it wouldn't be enough to free the African-American community from the shackles of generations of racism and discrimination.

One of the most powerful parts of the dissenting portion of Justice Marshall's opinion in Bakke is a 206-word description of the state of black America in the late 1970s.

Now, as the nation's highest court prepares to take up on Tuesday the constitutionality of affirmative action in admissions programs at the University of Michigan, Marshall's report card on equality in America offers an opportunity to gauge the progress (or lack thereof) made in the quarter century since the court last debated the issue.

"The position of [blacks] today in America is the tragic but inevitable consequence of centuries of unequal treatment," Marshall wrote in June 1978. "Measured by any benchmark of comfort or achievement, meaningful equality remains a distant dream."

Marshall cited US Census and US Labor Department data in seven categories, including the percent of black representation in five elite professions.

Here are Marshall's findings, updated with the most recent comparable statistics:

• In 1978, the life expectancy of a black child was five years shorter than that of a white child. Today it is six years shorter.

• Twenty-five years ago, a black child's mother was three times as likely to die of complications during childbirth as a white mother. Today she is 3-1/2 times as likely to die during childbirth.

• The infant mortality rate for blacks was twice that for whites. Today it is slightly more than twice.

• In 1978, four times as many black families lived with incomes below the poverty line as white families. Today, that ratio remains unchanged.

• For black adults, the unemployment rate was twice that of whites, and for black teens it was three times. Today, both statistics remain unchanged.

• The median income of a black family in 1978 was 60 percent of the median income of a white family. Today, it is 66 percent of white-family income.

• In 1978, blacks represented 11.5 percent of the population, but they were only 1.2 percent of the lawyers and judges, 2 percent of the physicians, 2.3 percent of the dentists, 1.1 percent of the engineers, and 2.6 percent of college and university professors. Today, blacks represent 12.3 percent of the population, and are 5.1 percent of the lawyers and judges, 5.6 percent of physicians, 4.1 percent of dentists, 5.5 percent of engineers, and 6.1 percent of college and university professors.

Conclusions from the numbers

Some analysts point to such statistics as proof that while a post-Bakke scaled-down version of affirmative action has helped bolster the ranks of black professionals, African-Americans as a whole have been left behind.

"Despite all the talk of the creation of a black middle class, the relative position of the black community to white America has not changed that much," says Andrew Hacker, a Queens College political-science professor and author of "Two Nations: Black and White, Separate, Hostile, Unequal."

While such statistics might have provided compelling evidence for the justices debating affirmative action in the 1970s, since the Bakke decision black-white equality is no longer the intellectual underpinning that drives the affirmative-action debate.

"I don't think anyone would disagree with Justice Marshall that there was a long history of tragic discrimination in the US, and as a result the socioeconomic status of African-Americans remains lower than other racial and ethnic groups," says Roger Clegg of the Center for Equal Opportunity, a conservative public-interest law group in Sterling, Va. "But a majority of the court [in Bakke] did not think that justified discrimination in favor of African-Americans."

To some analysts, the Bakke decision was more than a turning point; it was a U-turn.

"After Bakke, the debate shifted. There was no longer any talk of creating a racially just society," says john a. powell (who does not capitalize his name), a law professor at Ohio State University and executive director of the Kirwan Institute for the Study of Race and Ethnicity in the Americas.

"It is clear we are going backwards," he says. "High schools across the country are resegregating, and the court is saying this is not a constitutional injury. They are raising this huge barrier for people of color."

What's permissible

Because affirmative-action plans take race into account, those using a race-based plan must show two things to avoid violating constitutional safeguards. First, they must show there is an important, persuasive reason to use race as a factor in a selection process. Second, they must show there is no way to achieve the same goal without using race as a factor.

To Marshall, the compelling government interest was to reverse and remedy the effects of discrimination that had long excluded most blacks from full participation in mainstream American life.

But because this viewpoint could not attract a fifth vote - that of Justice Lewis Powell - that rationale died in 1978. It was replaced with the concept of diversity.

Rather than seeking to remedy past discrimination, Justice Powell wrote in Bakke's majority opinion that the goal of achieving a diverse college student body was a compelling enough reason to justify consideration of race as a factor in college admissions. But he added that race could not be the primary, determinate factor in the selection process.

After Bakke, goals and set-asides were clearly unconstitutional. But what was less clear was how much emphasis colleges could give to race without crossing the line into impermissible reverse discrimination.

That is the question that the University of Michigan cases raise.

Some affirmative-action opponents argue that US law should be colorblind. Race should never be a factor in college admissions, they say. Supporters say that because the playing field has been tilted against the vast majority of blacks from their birth, it would be wrong in a society that values diversity not to take into consideration the disadvantage that still travels with skin color.

The Bush team's stand

The Bush administration has staked out a middle-ground position, declining to urge the justices to invalidate any consideration of race in such plans, but, still, arguing that the Michigan plans are unconstitutional.

Critics of affirmative action say economic disadvantage can and should be a plus factor in recruitment and admissions programs. But race or group identity should never serve as a proxy for disadvantaged status.

"The Constitution is about individuals and individual rights, including the right not to be discriminated against on the basis of race. It is not about groups," says Eugene Volokh, a constitutional law professor at the UCLA School of Law.

"A focus on the status of a racial group rather than a focus on the status of an individual takes us in the wrong direction," he says. If colleges seek a student population that mirrors the racial makeup of America, he says, a large number of Asian-Americans and Jewish students will be shut out of the most elite schools regardless of their accomplishments.

"The question underlying the University of Michigan cases is why are so few African-American 17- and 18-year-olds academically competitive with white and Asian 17- and 18-year-olds," says Mr. Clegg of the Center for Equal Opportunity.

"The answer to that question is not discrimination," Clegg says. "The answer is extremely high illegitimacy rates, poor public schools, and a culture that too often views studying hard as 'acting white.' "

He adds, "Those problems are not going to be solved by racial and ethnic preferences."

Professor powell says it is wrong to ignore the racial component in the continued unequal treatment of blacks in America. "Race means more than just skin color," he says. "It means either privileges and benefits that follow a certain group, or it means disadvantages and liabilities, and those two things end up being related."

Powell and other affirmative-action supporters say minority recruitment and selection efforts should be evaluated by their benefits to society as a whole, not simply for its potential impacts on whites.

"I think our society is better off because Colin Powell is secretary of state, and he says he was an affirmative-action beneficiary," powell says. "But the benefit is to society, not just to him."

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