GWEN IFILL: Yesterday’s Supreme Court decision to uphold a Michigan state ban on affirmative action was only the latest setback for those who argue racial preferences are the best way to increase diversity on college campuses.
At least seven other states have enacted similar bans. The New York Times, using information compiled in part by the National Center for Education Statistics, looked at five of those states and found enrollment at flagship schools immediately fell for African-American and Latino students.
Some campuses have found other ways to achieve the same goals, but will these trends continue?
For that, we turn to two experts on the matter, Dennis Parker, director of the American Civil Liberties Union’s Racial Justice Program, and Roger Clegg, president and general counsel of the Center for Equal Opportunity.
Gentlemen, welcome to you both.
Does this decision that we saw yesterday at the Supreme Court, Dennis Parker, mean that the use of affirmative action as a means to achieve diversity on college campuses is done, over?
DENNIS PARKER, American Civil Liberties Union Racial Justice Program: No.
The Supreme Court has clearly said that race can be taken into account in a measured way and that it can be perfectly constitutional. So those cases upholding the affirmative action programs in Michigan, for example, still stand. It really only deals with those states that have passed these types of initiatives.
GWEN IFILL: But don’t the floodgates open after yesterday’s ruling for states to do that very thing?
DENNIS PARKER: Well, we’re hopeful that the states won’t do that.
We’re hopeful that the states will look at the experiences in the states that have these initiatives, recognize that the effects are harmful effects, hurt whole classes of people in the states, and won’t choose to go down the same path that Michigan and the other states went down.
GWEN IFILL: Roger Clegg, did the Supreme Court shut a door or open another one?
ROGER CLEGG, Center for Equal Opportunity: The Supreme Court did the right thing. The Supreme Court said that it’s OK for people to pass laws that say that the government can’t discriminate on the basis of race. That’s a good thing.
And I hope that more states will do that. I don’t think we should lose sight of the fact, Gwen, that with all the talk about diversity and educational benefits and all that, what is at issue here is whether the government should be treating Americans differently on the basis of skin color and what country their ancestors came from.
GWEN IFILL: Well, let me ask you, pose to you a question that Justice Sotomayor raised in her dissent. It was a pretty sharp dissent yesterday, in which she said — I’m paraphrasing her — that we can’t wish race away, that it will always be central to these kinds of conversations.
What is your response to that?
ROGER CLEGG: Well, I don’t disagree with that at all.
But I don’t think that the right way to address race is through more racial discrimination. I am all in favor of the government stopping racial discrimination of the old-fashioned politically incorrect kind. But I don’t think that the solution is to substitute politically correct racial discrimination for it.
I’m also all in favor the government doing things to help disadvantaged people. But it should be disadvantaged people of all racial and ethnic groups. Race shouldn’t be used as a proxy for disadvantage.
GWEN IFILL: Dennis Parker?
DENNIS PARKER: And I agree that there should be equality.
But the problem with this proposition is, it takes equality off the table. It says that if you are an applicant to a school in Michigan, you can urge them to accept you for any reason, such as your grandparent gave money to the school, your father went to the school, you play the oboe.
The one thing you can’t say is that I believe that my race is significant and reflects something about my personality. Perhaps it shows issues that I have overcome that are race-related.
It could mean a white student who lives in a black neighborhood, but got a leadership position in their high school, said that he learned something as a result of that.
GWEN IFILL: Why wouldn’t a race-neutral approach work to accomplish the same goal?
DENNIS PARKER: Because it presents from you ever making that argument. And in order to make it, you would have to change the Michigan Constitution.
So, it places a burden on you that other people don’t have.
GWEN IFILL: Roger Clegg?
ROGER CLEGG: I don’t think that is true.
I think that a situation where somebody had a story to tell, the one like Dennis just outlined, could be told. What is prevented is the state saying that we’re going to give people preferences because of their skin color or because of what country their ancestors came from.
That’s what is going on, unfortunately, at a lot of schools throughout the country. And I hope that more states will pass laws like the law that Michigan has.
GWEN IFILL: But is there value in the goal, the goal, which is to create a different social mix, to create a different level of academic achievement for disadvantaged individuals? Is there — is this just the way the goal — that the way the goal was being achieved is the problem?
ROGER CLEGG: I think that any goal stated in terms of diversity is not worth the price of racial discrimination.
And I think that the kind of diversity that matters is not diversity of superficial characteristics, like skin color. It’s diversity of backgrounds and experiences and perspectives. And you can get that kind of diversity without using race as a proxy for how people think and what kind of backgrounds they come from.
Most of the African-Americans who are given preferences to the more selective schools, 86 percent, in fact, come from middle-class or upper-class backgrounds. So you’re not really accomplishing any kind of real socioeconomic diversity by using race as a proxy for…
GWEN IFILL: So, let’s make the argument, Dennis Parker. Why not socioeconomic diversity instead, which might also capture racial diversity?
DENNIS PARKER: It might as almost an accident or as a proxy, but it doesn’t go to the problem.
Mr. Clegg talks about skin color as if it were not a significant factor in American society. And I think that’s why Justice Sotomayor’s opinion is so important, because she says, we can’t ignore history. We can’t ignore where we are now. The significance of race goes far beyond just the color of your skin.
It deals with opportunities you have. It deals with barriers you have faced. And it’s unrealistic to say that you can deal with discrimination by pretending that it doesn’t exist.
GWEN IFILL: Yesterday’s ruling was narrow, in the sense that it was — at least in Justice Kennedy’s words, it was about who gets to decide, not taking on the whole issue, as Dennis Parker pointed out. Other times, they have upheld other portions of it.
Does this to you suggest an avenue through ballot initiatives to achieve your aims?
ROGER CLEGG: Yes, I think that ballot initiatives are a good approach where that approach is available. But not all states have that.
Where states don’t have a ballot initiative approach, then I would hope that the state legislatures would pass simple legislation. And I hope Congress acts in this area too. I think that Congress really intended to ban this kind of discrimination when it passed the 1964 Civil Rights Act, which we’re celebrating the anniversary of this year.
But, unfortunately, the Supreme Court ignored the plain meaning of the 1964 Civil Rights Act, so I think Congress needs to go back and clarify that.
GWEN IFILL: Do you see a congressional role in this, Dennis Parker?
DENNIS PARKER: Well, first of all, I don’t think that it is at all clear that our Congress never intended for affirmative action to be permitted. And, again, clearly, the Supreme Court permits that.
But I think one of the things you have to keep in mind is that part of the purpose of the Constitution is to protect minority groups who may not have the ability to get enough votes to pass or to defeat an initiative like that, but are still subject to burdens and to disadvantages.
And that’s part of the problem of this case is that you had people — you have people who are suffering and who are not permitted to assert this important thing, which — and, as a result, you have — you know, in Michigan, the number of black students decreased by 33 percent after the passage.
GWEN IFILL: Dennis Parker of the ACLU and Roger Clegg of the Center for Education Opportunity — I think I got…
ROGER CLEGG: Equal Opportunity.
GWEN IFILL: Equal Opportunity. I knew I got that wrong.
GWEN IFILL: Thank you both very much.
ROGER CLEGG: Thank you, Gwen.
DENNIS PARKER: Thank you.
PBS NewsHour coverage of higher education is supported by the Lumina Foundation and American Graduate: Let’s Make it Happen, a public media initiative made possible by the Corporation for Public Broadcasting.