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New
Laws Must Counter Resegregation in Higher Education
By
Eva Paterson
Los
Angeles/San Francisco Daily Journal
June 23, 2004
Today
marks the one-year anniversary of Grutter v. Bollinger, in which
the Supreme Court held that student-body diversity is a compelling
governmental interest and that the University of Michigan Law
School's affirmative action program was narrowly tailored to meet
that interest.
Since
Grutter requires universities to engage in "serious, good
faith consideration of workable race-neutral alternatives,"
California's experience with Proposition 209, which banned affirmative
action, yields important lessons.
In
Grutter the American Civil Rights Institute in Sacramento -- chaired
by Ward Connerly, a University of California regent and leader
of the Proposition 209 campaign -- filed a brief assuring that
the prohibition of affirmative action "will not close doors
to higher education for African Americans and Hispanics."
Connerly's
Institute even claimed that Proposition 209 had a beneficial impact
on underrepresented minority students at the University of California.
Is
Proposition 209 at the University of California a national model
of a workable race-neutral alternative, or did it close doors
of opportunity?
In
2004 at UC Berkeley, UCLA, and UC San Diego, African-Americans'
share of freshmen admission offers sunk to 2.5%, 2.3%, and 1.8%,
respectively. These figures for Berkeley and UCLA are two-thirds
lower than in 1995, when Connerly first began lobbying other regents
to ban affirmative action.
Combined,
African Americans, Latinos, and American Indians received 26.1%
of Berkeley's admission offers in 1995, but only 14.8% in 2004.
At UCLA, underrepresented minorities' admission offers similarly
dropped from 26.7% in 1995 to 15.7% in 2004.
After
Grutter, Connerly campaigned hard in Michigan for an anti-affirmative
action initiative similar to Proposition 209. He told the Detroit
Free Press that even if ending affirmative action restricted access
to Berkeley and UCLA, students could attend other University of
California schools such as those in Davis and Riverside.
However,
in Grutter, the Court found that such resegregation of highly
selective institutions compromises America's future: "In
order to cultivate a set of leaders with legitimacy in the eyes
of the citizenry, it is necessary that the path to leadership
be visibly open to talented and qualified individuals of every
race and ethnicity."
Moreover,
Connerly's "back of the bus" argument is wrong on the
facts; Proposition 209 did not just lessen access to Berkeley
and UCLA. Across the eight University of California campuses,
African-Americans, Latinos, and American Indians were 21% of freshmen
in 1995 compared to 18% last fall.
This
is a remarkably discouraging statistic, given that eligibility
rates to the University of California for African-American and
Latino high school graduates nearly doubled over this period,
thanks to valuable outreach and enrichment programs.
The
University of California's experience demonstrates that there
are no satisfactory race-neutral alternatives since Proposition
209 banned affirmative action in education, employment, and contracting.
That is why the Equal Justice Society joins a broad coalition
in supporting Assembly Bill 2387.
This
bill, sponsored by Assemblyman Marco Firebaugh, the Lawyers' Committee
for Civil Rights, and the Mexican American Legal Defense and Educational
Fund, would change the Education Code to allow for the consideration
of race along the lines endorsed by the Supreme Court in Grutter.
Another
California statute enacted last summer, Government Code Section
8315, shows promise by using international law to curb the harmful
effects of Proposition 209. This law harmonizes the definition
of "racial discrimination" with the International Convention
on the Elimination of All Forms of Racial Discrimination.
Last
April in Avila v. Berkeley Unified School District, a facial challenge
based upon Proposition 209 to Berkeley's voluntary desegregation
plan, a Superior Court judge sustained the School District's demurrer.
The
court found that, consistent with Government Code Section 8315,
Berkeley's desegregation plan did not have "'the purpose
or effect of nullifying or impairing the recognition, enjoyment
or exercise, on an equal footing,' of the 'human rights and fundamental
freedoms' of any student." This is an important step in defending
the legacy of Brown v. Board of Education.
Section
8315 is a reminder of the powerful connection between international
law and U.S. civil rights law. In fact, in the Cardozo Law Review
Justice Ruth Bader Ginsburg cautions, "We are the losers
if we neglect what others can tell us about endeavors to eradicate
bias against women, minorities, and other disadvantaged groups."
Yet
70 member of Congress are co-sponsors of House Resolution 568,
which directs federal judges to disregard international law in
constitutional interpretation. At a time when the Abu Ghraib prison
torture scandal poignantly reminds us that America must uphold
its commitment to the Geneva Convention in order to affirm human
dignity and to protect our troops from being tomorrow's torture
victims, Resolution 568 is an especially reckless repudiation
of international law.
A
final lesson is that Proposition 209 and similar initiatives are
crafted by a well-heeled juggernaut of ultra-conservative think
tanks, legal groups and foundations that resegregate America by
melding legal theory, policy, and frontline political action.
The progressive legal community has a lot of catching up to do
to meet the right wing's organizational and strategic sophistication,
but we are improving.
Grutter
shows that progressives are getting better at convincing America
that resegregation undermines American society and business.
In
1996, only a few corporations opposed Proposition 209. Yet, in
Grutter, sixty-five Fortune 500 corporations filed a brief supporting
the University of Michigan, and zero corporations filed in opposition.
This was crucial to the Court's determination that "the skills
needed in today's increasingly global marketplace can only be
developed through exposure to widely diverse people, cultures,
ideas, and viewpoints."
Likewise,
a critical factor in the overwhelming defeat of Connerly's Proposition
54 last October, which would have banned racial data collection
in California, was vocal opposition from 50 health organizations,
including the American Heart Association and Kaiser Permanente.
The
good news is that folks are increasingly rejecting the politics
of division. Connerly's effort in Michigan to place an initiative
on the November 2004 ballot is dead in the water. His signature-gathering
effort has stalled because a lawsuit, being appealed to the Michigan
Supreme Court, successfully demonstrated that the initiative's
language masked the extent to which it would alter Michigan's
constitution. Both the Republican and Democratic state parties
oppose the initiative in Michigan, and it is doubtful that a drive
for the 2006 ballot would garner the funding advantage that Connerly
enjoyed with Proposition 209.
Grutter
and Proposition 54 show that progressives are becoming more adept
at blending law, social policy, fundraising, and political action
in order to fight for racial justice, skills that will be of great
value in the nationwide effort to promote educational equity in
the years to come.
Eva
Paterson is the executive director of the Equal Justice Society
in San Francisco.
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