When the nine justices who make up the United States supreme court pronounce on a case involving racial issues, it is not just Americans who listen, but nations around the whole world.
That is because, even today, nearly 40 years after the passing of the Equal Rights Act, laws on race still send a resonant message to and about Americans. ”We are not far from an overtly discriminatory past,” supreme court justice Ruth Bader Ginsburg reminded her colleagues this week, ”and the effects of centuries of law-sanctioned inequality remain painfully evident in our communities and schools.” Americans may assume that the rest of the world should ”conform to us as the benchmark of normal civilised values”, as the New York Times columnist Bill Keller teased his readers this week. But unless those values are upheld by the highest public figures in the land, race will always be, as it was for so long, the dark shadow across America’s sun.
So when the supreme court speaks, it matters. And we distant nations listen almost as hard as Americans do themselves. That was true nearly 50 years ago when the court banned segregation in education. It was true again 25 years ago, when the court said that racial quotas were illegal. And it was true again this week when the court gave its long awaited judgment in two cases brought against the positive discrimination admissions policies of the University of Michigan. By the narrowest margin, the justices took a stand in defence of the right of Michigan (and, by implication, of hundreds of other colleges) to take race into account in their admissions policies to uphold the principle of diversity. But they could only do it, the judges ruled, by ”narrowly tailored” methods based on individual circumstances. They must not use quotas or — as Michigan did with undergraduate applicants — award automatic extra admission credits to disadvantaged minorities.
This all adds up to a great defensive victory for affirmative action against its challengers. Colleges across the United States have given a collective sigh of relief, summed up in the view of Lee Bollinger, the former president of the University of Michigan against whom the cases were brought, that the judgments are ”as clear as constitutional law gets”. Colleges with affirmative action programmes — as most of them have — have been given a thumbs-up to continue with them. Colleges that had been forced to abandon them by lower level appeals courts, as happened to the University of Texas during George Bush’s governorship in 1996, may now reinstate them.
The rulings send a powerful domestic political signal as well as a powerful one for would-be students. A win for affirmative action is also a defeat for neo-conservatism, especially for the militants who long for Bush to appoint an even more rightward-leaning supreme court that can take the lead in annihilating America’s pro-diversity laws and pro-abortion laws. Nor would such activists stop there. As the Chicago law professor Cass Sunstein pointed out in a New Yorker interview last month, the new right-wing activists are different from their Reagan-era predecessors: ”They’re also against Franklin Roosevelt and the New Deal. They want to restore the status quo from about 1934. They want to cut back on what government is allowed to do, whether it’s campaign finance legislation, or affirmative action, or the right to sue for environmental violations. It’s a radical agenda.”
Much of that, it now seems, is for another day. In its own submission to the court on the Michigan cases, the White House signalled that racial diversity within the student body could be a worthwhile goal. So, too, just as significantly, did dozens of major corporations and the American military, all of which submitted ”friend of the court” briefs in support of the university — a sign that was picked up by the ”swing” judge on the court, Justice Sandra Day O’Connor, who wrote the majority ruling in very much those terms. Bush was then quick to welcome the court’s rulings in a statement which said diversity is ”one of America’s greatest strengths”. The president’s priority, for the next 18 months, is to win his second term, not to provide his enemies with ready-made causes, such as racial equality, abortion rights or conservative judicial appointments, around which to rally coalitions against him. Bush’s remark may have ”dismayed” those like the leading neo-con writer Bill Kristol, who see diversity as a sacred cow. But the signs are that the long expected radical changes in the supreme court (from which Day O’Connor and the veteran chief justice William Rehnquist are keen to retire) may now not come until the Bush second term in 2005.
The Michigan cases may seem to belong to a different world. Yet there is a clear connection with Britain, not just with our own racial diversity goals, but also with the debate about the way in which top-up tuition fees will affect equality of access to our own colleges. Here, as the government’s April white paper Widening Participation in Higher Education pointed out, the ”attainment gap” between students from middle-class and working-class backgrounds has widened over the past 40 years, even before top-up fees became an issue. Once they are introduced, even the intended Office for Fair Access will be hard put to prevent the gap widening further.
If it is to do so, the office will surely be tempted to move from the rather vague ”milestones, indicators and benchmarks” of which the white paper speaks, towards a more individual-centred set of yardsticks that colleges can use for assessing applicants and attaining the desired diversity – towards the American model, in fact.
Until the US supreme court struck it down this week, the University of Michigan used a points system to quantify the claims of its freshman applicants. Applicants could score up to 150 points, with a score of 100 or more entitling a student to an automatic place. On Tuesday, in a judgment written by Rehnquist, the court threw out Michigan’s rule allowing 20 automatic points to anyone from an underrepresented racial minority group. But the points system had more to it than that. Applicants could also get points for such things as socio-economic disadvantage, attending a socio-economically disadvantaged high school, or being a resident of an under-represented county in Michigan.
If those considerations ring bells here too, then so they should. Criteria like this are very close to the things that the Office for Fair Access will have to be concerned with. As yet, there is little detailed talk in Britain about diversity strategies in college admissions. But this is the direction in which we are surely moving. Michigan may seem a distant place to most of us. But it is getting nearer all the time, and rightly so. – Guardian Unlimited Â