The Debate Over Race Needs Minority Students' Voices

For several years, critics have waged a sustained attack on the affirmative-action programs that have changed the racial composition of America's formerly segregated elite colleges, universities, and professional schools. At stake is the degree to which African-American, Latino, and other minority students will have the opportunity to attend highly selective institutions.

Cases have been filed in Georgia, Maryland, Michigan, Texas, Washington, and elsewhere. Almost everyone expects that within the next few years the Supreme Court will revisit its 1978 decision in Regents of the University of California v. Bakke, which prohibited racial quotas but allowed universities to consider race as one factor among many in pursuit of diversity.

Ironically, those with the most to lose in the debate are often denied a voice. Minority students -- whom the affirmative-action debate is about, after all -- have been, at affirmative-action debate is about, after all -- have been, at best, ignored and, at worst, excluded from participating during crucial court cases.

The interests of colleges and universities -- even those such as the University of Michigan that have hired top-gun lawyers to mount a strong defense -- barely overlap with those of minority students. For the institutions, the issue is whether they can attract a racially diverse group of students and thereby expand the educational experience of all their students. For minority students, the issue is whether the most prestigious educational institutions will be off-limits. One needn't have scored a 1,600 on his or her SAT to figure out who has the most to lose.

Perhaps the marginalization of minority students in anti-affirmative-action litigation is consistent with Justice Lewis Powell's controlling opinion in Bakke. The opinion did not acknowledge minority students' interest in overcoming the accumulated deficits, flowing from the long history of discrimination, that place them at a disadvantage in high-stakes admissions.

To the contrary, Bakke foreshadowed the current trend in which the courts have pushed more and more racial disparity into a category labeled "societal discrimination" -- that is, discrimination for which no one is responsible and for which there is no remedy. Justice Powell ruled that the University of California at Davis medical school could pursue diversity, including racial diversity, based on academic freedom protected by the First Amendment, but could not pursue diversity to remedy such "societal discrimination."

Since then, the courts have gone even further in denying the significance of race and its effects. Their focus has been on the issue of whether institutions have a right to pursue diversity; they have all but ignored the question of whether minority students have a right to access to those institutions.

In Hopwood v. Texas, the case involving the University of Texas School of Law that struck down affirmative action in three Southern states, the court concluded that "[t]he use of race, in and of itself, to choose students simply achieves a student body that looks different. Such a criterion is no more rational on its own terms than would be choices based upon the physical size or blood type of applicants. ... [T]he use of ethnic diversity simply to achieve racial heterogeneity, even as part of the consideration of a number of factors, is unconstitutional."

that analysis empties race of all substantive content. It leads to the absurd and Orwellian conclusion that being black or brown in America means nothing.

Contrary to assertions of affirmative action's foes, race does matter, even at the turn of the millennium. Attempts to wish away race through the imposition by fiat of a "colorblind" world fly in the face of daily reality. Such colorblindness is a Trojan horse that carries within it the means by which the historical and present disadvantages of being black or brown in American society will be perpetuated.

When 20th-century civil-rights advocates invoked the vision of a colorblind society in the course of their struggle against white supremacy, they were not seeking a world that would be blind to the significance of race -- however much they may have wished race had no significance. The question was not, and has never been, whether we see race. Rather, the question is, having seen race, what is its significance? Having seen race, how do we treat one another?

Given our nation's painful and tortured history with racism, we cannot pretend the issue of race does not exist. Nor, in the challenges to affirmative action in higher education, can we ignore the voices of those who have been the object ofracism.

The exclusion of minority students has significant impact on the records made in affirmative-action cases. Institutions usually take the position that minority students' participation is either improper or unnecessary. As a result, minority students don't get the opportunity to introduce evidence, present their own witnesses and arguments, or question the plaintiff's witnesses. Perhaps that is because, more often than not, minority students seek to introduce evidence and make arguments that institutions are unwilling to submit.

That fact alone -- that minority students' interests are not adequately represented by the existing parties -- should alert the courts to the need to allow minority students to participate in affirmative-action cases. Yet in Hopwood, for example, the district court and the U.S. Court of Appeals for the Fifth Circuit thrice denied motions by black and Mexican-American students to intervene, finding that the State of Texas adequately represented their interests. The real evidence demonstrates, however, that the state did not.

Texas has a history of racial discrimination, which could have been used to build a case for affirmative action. But Texas officials were not going to embarrass themselves and develop a full record on that issue. Moreover, the Texas attorney general publicly opposed affirmative action at the time Hopwood was appealed; the same white plaintiffs who opposed intervention by minority students on the grounds that Texas adequately represented minority students' interests quoted the attorney general's public statements in their briefs.

Whatever it may have thought it was doing, the University of Texas School of Law was not representing the interests of black and Mexican-American students. Texas administrators did not question their own admissions standards to ensure that those standards did not improperly rely on standardized tests.They had structured an admissions process that conflicted with the Bakke decision because admissions officers did not consider minority students in the same applicant pool as white students -- thereby rendering the process unnecessarily vulnerable to attacks from the beginning.

Participation by minority students might not have led the Hopwood appellate court to rule differently. But, with so much at risk, shouldn't minority students at least be entitled to their day in court?

Hopwood was not an anomaly. Minority students sought to participate in two Michigan affirmative-action cases -- one against the University of Michigan law school and another involving the university's undergraduate admissions. The district-court judge in the law-school case ruled that the interests of the students were adequately represented by the university. The judge in the undergraduate case did not even consider the issue of adequate representation; he simply ruled that minority students had no legal standing in the lawsuit. The students had to appeal to win the right to participate, as they did.

Contrast those cases with Wooden v. Board of Regents of the University System of Georgia. In that instance, black students intervened in a suit that not only challenged affirmative action in admissions in state institutions, but also in essence sought to require Georgia's historically black institutions -- which are now integrated -- to adopt the same admissions standards as those at the state's flagship, the University of Georgia at Athens. White applicants, without a legacy of discrimination to overcome, wanted the standards raised at historically black institutions because they thought that would improve their odds in gaining admission.

Given the gap between black and white students on standardized tests, if the Wooden plaintiffs had won all they originally sought, most black students in Georgia would have been locked out of even four-year state institutions supported by their families' taxes. That would have left African-American students in Georgia in a worse position than they were in before 1954, when at least they were legally entitled to "separate but equal" access to state colleges and universities.

Largely because black students intervened, the plaintiffs failed. Lawyers for the minority students introduced much of the crucial evidence that conclusively demonstrated that white plaintiffs were not denied admission in consequence of affirmative action, but because they simply were not well qualified -- evidence that Georgia officials hadn't planned to introduce. Although the district-court judge was demonstrably hostile to Georgia's affirmative-action efforts, he was compelled to dis miss the case. (On the invitation of the judge, the plaintiffs' lawyers in Wooden filed two new cases. African-American students intervened again and, this time, defeated the plaintiffs' efforts to maintain a class action.)

At the end of the day, everyone knows what such cases are all about. At their heart is the contention that African-American and Latino students admitted to elite educational institutions do not deserve to be there. It is all about them.

If affirmative action is struck down, as it was in Hopwood, the universities go on. Some white students will be admitted, some won't. The real issue remains: Absent some conscious effort to produce racial diversity, will minority students continue to be admitted in significant numbers?

In the year 2000, race in America still has a powerful impact on life experiences. Race affects mortality rates of black babies, the quality of education of black children, where blacks live, how they interact with the police, the kind of employment opportunities or health care available to them -- in short, life experiences from cradle to grave. Whetheradmissions officers at elite institutions must blind themselves to those experiences is the subject of a furious battle now being waged. In the legal struggle to determine whether the impact of race upon the lives of minority students will be seen, at the very least their voices must be heard.

Theodore M. Shaw is the associate director-counsel of the NAACP Legal Defense and Educational Fund Inc.