• August 30, 2015

Sandra Day O'Connor Revisits and Revives Affirmative-Action Controversy

Sandra Day O'Connor Revisits and Revives Affirmative-Action Controversy 1


Sandra Day O'Connor, the retired Supreme Court justice, has struck a raw nerve among critics of affirmative action in a new essay about her landmark 2003 decision in a case involving the U. of Michigan law school.

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Sandra Day O'Connor, the retired Supreme Court justice, has struck a raw nerve among critics of affirmative action in a new essay about her landmark 2003 decision in a case involving the U. of Michigan law school.

Having held in a landmark 2003 Supreme Court ruling that diverse college enrollments have proven educational benefits but that colleges should not need race-conscious admissions policies 25 years down the road, a retired associate justice — Sandra Day O'Connor — is now singing what some hear as a different tune.

In an essay written with Stewart J. Schwab, who had served as one of her Supreme Court clerks and is now dean of the Cornell Law School, Justice O'Connor argues that the majority opinion she wrote in the 2003 affirmative-action case should not be seen as imposing a deadline on the use of race-conscious policies or as relieving the need for more research showing such policies have educational benefits.

"When the time comes to reassess the constitutionality of considering race in higher-education admissions," the essay says, "we will need social scientists to clearly demonstrate the educational benefits of diverse student bodies, and to better understand the links between role models in one generation and aspirations and achievements of succeeding generations."

The essay, contained in the new book The Next 25 Years: Affirmative Action in Higher Education in the United States and South Africa, has struck a raw nerve among critics of affirmative action who were frustrated by the pivotal role Justice O'Connor played in preserving race-conscious admissions policies in the Supreme Court's 2003 Grutter v. Bollinger decision, involving the University of Michigan Law School. Seen as the court's swing vote on the affirmative-action issue, she ended up siding with its liberal wing in a 5-to-4 ruling holding that race-conscious admissions policies are constitutional because they serve the compelling state interest of promoting diversity and its associated educational benefits.

"I am glad she is no longer on the Supreme Court," said Roger B. Clegg, president of the Center for Equal Opportunity, which opposes racial and ethnic preferences and had submitted a friend-of-the-court brief on behalf of Barbara Grutter, the rejected white applicant to Michigan's law school who was the plaintiff in the case.

Justice O'Connor, Mr. Clegg said, "is not a social scientist by training, and the problem with her jurisprudence is that she would too often try to be a social scientist rather than a justice. She tried to make policy rather than interpret laws."

Terence J. Pell, president of the Center for Individual Rights, which provided legal assistance to Ms. Grutter, said, "I think the fact Justice O'Connor is doing this reflects the fundamental weakness of the opinion she offered: It failed to offer a principled basis for limiting — or even judging the effectiveness of — these practices."

'Everyone's Worst Fears'

In her majority opinion in the Grutter case, Justice O'Connor wrote: "We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today." That sentence was widely regarded as a prediction that the Supreme Court would be less willing to give its blessing to race-conscious admissions policies a quarter century down the road, and as giving the nation's educational institutions an informal deadline for finding alternatives to race-conscious admissions policies and closing race-linked gaps in educational achievement.

In a speech delivered in 2007, a year after her retirement, Justice O'Connor herself had said the Grutter majority "had tried to be careful in stressing that affirmative action should be a temporary bandage rather than a permanent cure."

In her new essay, Justice O'Connor says, "That 25-year expectation is, of course, far from binding on any justices who may be responsible for entertaining a challenge to an affirmative-action program in 2028." The task before those justices will be the same as the task before others who previously took up the issue, "applying abstract constitutional principles to concrete educational endeavors."

Mr. Pell of the Center for Individual Rights said Justice O'Connor's essay reflects "a significant change of posture" from the Grutter decision's language. "What I found surprising was the extent to which the authors confirmed everyone's worst fears about this 25-year limit — namely, that is not a limit at all, but rather an opening bid in an effort to justify the use of race preferences in perpetuity."

Mr. Clegg of the Center for Equal Opportunity said Ms. O'Connor's essay does not speak for the other justices who signed on to her opinion. "She cannot change the meaning of the word 'expectation' by her own fiat after she has left the court," he said.

But John Payton, who headed up the team of lawyers defending Michigan's policies and now serves as president of the NAACP Legal Defense and Educational Fund, said he did not see any discrepancy between Justice O'Connor's Grutter opinion and her essay. The 25-year expectation offered in the opinion was "a prognostication" and "not intended to be a holding" of the court, he said.

Studies by 'Scholars of All Stripes'

Elsewhere in her Grutter decision, Justice O'Connor cited research on the educational benefits of diversity offered by Michigan's lawyers and in friend-of-the-court briefs submitted on Michigan's behalf, calling such benefits "substantial" and "not theoretical but real."

The essay she wrote with Dean Schwab similarly argues that campus diversity provides several educational benefits. But it then says: "We hesitate to cite scholarly work to back our speculations in this part. Certainly useful studies have already been conducted on the benefits from diverse student bodies, but in our view more needs to be done."

While acknowledging that studies of diversity "are fraught with political implications" and "many fear that the results of any particular study will be manipulated," the essay says the response to such fears "should be a call for more studies by scholars of all stripes."

The essay speaks approvingly of research by Robert D. Putnam, a professor of public policy at Harvard University, who has found that ethnically diverse neighborhoods tend to have less trust and cooperation. "The importance of the topic should not prevent us from asking questions whose answers might disappoint us," the essay says.

Mr. Pell said he found it "a little startling for the justice who authored the majority opinion to now be so candid that these studies were weak and the court's opinion was speculative." Mr. Clegg said, "She seems to think that social science can give definitive answers, and of course it cannot. Social science is so malleable and so political that you can find social scientists who will give you whatever answer you like."

Mr. Payton of the NAACP Legal Defense and Educational Fund interpreted the essay mainly as a call for social scientists to better defend educational diversity in the political arena, to counter efforts to curtail affirmative action through legislation and referenda. Nonetheless, he said, given the challenges and limits of research involving people, it may be impossible for social scientists to construct an unassailable study measuring diversity's impact on education. "At some point you cannot do much more research," he said.

In her 2007 speech, Justice O'Connor lamented that the nation was not making more progress in remedying the gaps between the races in achievement in elementary and secondary schools. Much of her new essay is devoted to calls to improve public schools and to find ways to overcome cultural impediments to academic achievement. It says that "unless substantial progress is made, higher education will continue to face the dilemma of choosing between educational achievement and diversity."

The book containing Justice O'Connor's essay was published by the University of Michigan Press and edited by David L. Featherman, a professor of sociology and psychology at the University of Michigan; Martin Hall, a former deputy vice chancellor of the University of Cape Town; and Marvin Krislov, president of Oberlin College, who served as the University of Michigan's general counsel while the Supreme Court battle over its admissions policies was being fought. Among those contributing chapters are several key players in the defense of Michigan's policies, including the university's president, Mary Sue Coleman; its former provost, Nancy Cantor; and several social scientists who produced diversity research cited by the university's lawyers.


1. vtbyrdwc - January 15, 2010 at 08:50 am

I'm dissapointed that critics of affirmative action can change their mind on the expectations of higher education and society while supporters are lambasted. Futhermore, questioning the rigors of social science research on the grounds of value-neutrality is erroneous. Self-interest is within all research, and trumping up charges that social science research should be dismissed because of the possible political implications (good or bad for your side) of a study's findings is ignorant. You know why you cannot gain "definitive answers" from social science? Because society does not work within a limited set of boundaries, and predicting the unpredictable is hard. It's easy to work within a set of boundaries, but when you work with a general principles of structure and interaction that change with context, you get ambiguity.

2. johnthackston - January 15, 2010 at 12:12 pm

Affirmative Action is a prime example of what can happen when the judicial system takes a government program and expands it far beyond the original intent. When President Johnson issued his Executive Order which required organizations doing business with the Federal Government to take "affirmative" steps to encourage women and persons of color to obtain the skills required to hold positions they had been systemically excluded from, less than 5% of all college students in health, law, engineering, and science were women and persons of color combined. That was the essence and sole intent of "Affirmative Action" and through the auspices of an organization called "The National Alliance of Businessment".

The NAB was an informal affiliation of the top corporations in America pooling their resources into a "think tank" with the objective of getting women and persons of color into college and prepared for a world of work they had been excluded from. In turned out to be the most significant "jobs" program in history and it did not cost the tax payer a dime. The only "percentages" that appeared in Affirmative Action Plans were population distribution by hiring area. These numbers were used to paint a picture of what the utilizatio0n of women and persons of color "should" look like if they possessed the skills needed to do the job.

The Affirmative Action program worked well beyond the most optimistic expectations. By the year 2000 over 52% of enrollment were women and persons of color and the workforce reflects those achievments. There is still much that needs to be done but quotas are not the answer. Getting persons of color, particular negro men, through high school and into college as well as economically disadvantage persons of both races and all genders is of paramount urgency. My home state of West Virginia is a prime example.

Not all businesses cooperated and many objected to being forced to take affirmative steps to recruit qualified women and persons of color. And there were other abuses. The courts, when faced with the recalcitrant employer - both public and private, took the "law into their own hands" and mandated from the bench percentages of immediate utilization particularly where the skill sets required to do the job were more easily obtained or were clearly present. There was a better, more appropriate solution - legislative oversight and enforcement, but that raised significant political issues for the legislative bodies sensitive to a "white" backlash.

On the issue of diversity as a significant educational tool there can be no debate worth the time. There can be no progress, social or technical, where there is no diversity of opinion and perspective while at the same time, nothing is more polarizing than diversity. And no diversity is more polarizing than gender, race, and religion. If you do not believe this and you are white - take your family from white middle class suburban America and move them to a cold water flat within ten blocks of 125th Street and Lexington Avenue and experience what it is like for a black family to prosper in Forsyth County Georgia.

We are the most diverse nation in the history of the planet and we have done more to reap the advantages that come from learning to value differences than has occured throught the history of life on earth. It has always been painful and, at times, it has been extremly ugly. It is unfortunate that much of our progress has been forced fed from the bench rather than created through the democratic processes motivated by the heart. We have had both and maybe it was necessary. In any event, I thank God for it.

I am a 72 year old white southern male who is much the better person becuase I lived and learned through this period.

John Thackston

3. princeton67 - January 15, 2010 at 02:29 pm

Mr. Thackson's sincere and committed comments above embody precisely what I consider to be the sleight of hand, even the hypocrisy, of the reality of "Affirmative Action." As the son of Holocaust Survivors, as an Orthodox Jew, I believe myself to be as "diverse" as any "women.... persons of color.....negro men......black family in Forsyte County, Georgia". Not to mention, "a 72 year old white southern male....".
Again and again, Affirmative Action has been applied to two or three groups only: I have never read about "diversity" being invoked for, say, Appalachians, Mormons, Quakers, Gays, Lesbians, Transgendered,etc. etc. etc. Yet, these groups are as varied as any gender or racial group. In fact, in the admissions system of California universities, "diversity" has been invoked against those of Asian descent.
As Mt. Thackston so eloquently declares, "We are the most diverse nation in the history of the planet." Too bad that Affirmative Action has been applied to so few.

4. 11328626 - January 16, 2010 at 06:25 pm

Not surprisingly, critical comments like those above, completely elide the centuries-old reason for affirmative action and the role that racists' legislative and violent efforts to block or restrict educational access and economic improvement for blacks played as particular and intential weapons in the conflict produced by American institutional racism. The minorities that Princeton67 mentions could all partake of the educational and economic opportunities in the U.S., as long as they concealed their religion or orientation. These groups might be as "varied" as a gender group or race group in a contemporary analysis of diversity, but the whole point is that blacks were by phenotype, "one drop," or the very suspicion of recognized African heritage, barred, often violently from any substantive portion of the American Dream, including higher education. That had massive, long-term, generational effects and produced damage that cannot be repaired in a mere historical snippet of time. To ignore this fact is to be purely and willfully ignorant. I might point out that the Jewish community was for some time one of the biggest allies of African Americans in the struggle for civil rights. This was often in the form of members of the community who, despite their own ability to escape a particular racial discrimination like blacks, still knew, remembered,and refused to silently allow the horror of ruthless discrimination to go unchallenged on their watch. They also recognized that the educational and economic success of the Jewish community in the U.S. was owed in part to their ability to eventually racially assimilate, as the longstanding stereotypes of physical Jewishness faded in the Anglo population. They were able to pass or at least were admitted to whiteness in some measure. Italian Americans, Irish, and Slavic populations in the U.S. should remember this as well, because that have all endured a brief, racist holdup before being admitted to whiteness. Blacks have remained stalled behind racial barriers. There copious nubers of other reasons of significant nuance, but these have been covered by scholars of note already. I find it amazing that the fact that the former justice refuses to ignore history, like the racists who masquerade as defenders of civil rights, should somehow expose her to criticism on this site of all websites.

5. warrennorred - January 16, 2010 at 10:17 pm

Sandy has done enough damage to last several lifetimes. She's off the bench; let her miseducate the poor Cornell students and leave the rest of us alone.

6. equinebreeder - January 17, 2010 at 04:43 am

11328626's comments above give an explanation for Black underachievement and contrast it with the relative achievement of Jews in America. She/he gives an explanation for why Blacks underachieve in America relative to Whites (and presumably Jews). I however disagree with her/his assertions of the cause for relative Black underachievement.

The "generational effects" he/she claims are difficult to substanitiate when one considers that those of African Ancestry in other Western countries are not any better off. Blacks in Britain and other Western countries generally underachieve academically and financially even though they have not experienced "generational effects" such as slavery. Additionally North East Asians and Indians (those from India) in America continue to experience greater success in the two aforementioned areas compared to Whites even though they are typically easily distinguishable from Whites; and in the case of North East Asians, have experienced protracted discrimination themselves.

If it were the case that physical differences in appearance were the main cause of the racial disparities of interest we would see that North East Asians were somewhere between Whites and Blacks - This is not the case.

The views espoused by 11328626 are those of multiculturists that cannot stand the more parsimonious idea that Blacks' underachievement is because of less cognitive ability, a propensity toward Psychological disorders and a general lack of inhibition. In my opinion North East Asians prosper in America because they have the very opposite characteristics (Major Depression being an exception). Similarly Indians prosper because those that come to this country have many of the same qualities as North East Asians and more importantly perhaps, are the product of massive brain drain - as is evidenced by studies showing the Indian IQ being around 90 and the general disfunctionality of their society when compared to the West.

I believe that such a view is devoid of the tortured rationalizations that come with believing that culture arises from nothing and that a people are in no way responsible for their own condition.

Sandra and supporters....

"When the time comes to reassess the constitutionality of considering race in higher-education admissions," the essay says, "we will need social scientists to clearly demonstrate the educational benefits of diverse student bodies, and to better understand the links between role models in one generation and aspirations and achievements of succeeding generations."

If we need those conclusions to be more certain in the future, what explains your decision? Did it matter less then?

"...holding that race-conscious admissions policies are constitutional because they serve the compelling state interest of promoting diversity and its associated educational benefits."

Many like to ballyhoo about the benefits of diversity, but I am still waiting for the benefits that it is supposed to have. If social science is inconclusive on the matter, as the previous quote had suggested, why would we assume it was in the national interest?

"Mr. Payton of the NAACP Legal Defense and Educational Fund interpreted the essay mainly as a call for social scientists to better defend educational diversity in the political arena, to counter efforts to curtail affirmative action through legislation and referenda."

It is antithetical for scientists to defend anything other than objective truth. It is inevitable that scientists would have certain political views, but it is unacceptable that they let their views color their conclusions. If they can come to the conclusion that diversity is beneficial in general, then so be it. I am doubtful to say the least. If it were up to Mr. Payton I wonder if we would have anything that truly qualifies as science at all.

"unless substantial progress is made, higher education will continue to face the dilemma of choosing between educational achievement and diversity."

In a way, this is the most reasonable quote attributed to her in the article. She still however seems to be juxtaposing the real world where you have more of what she calls diversity (more Hispanics and Blacks), where a "diversified" student population almost always means dumbing down the curriculum and her fantasy where we can finally hold hands as we stroll through the field of candy canes and gum drops that is our world.

7. clytemnestra - January 17, 2010 at 01:32 pm

The racial component of Affirmative Action is nothing more than a distraction from the real internecine warfare conducted by the established white elite males on lower, middle and working class white males. If AA really was about improving the plight of the gifted and talented poor of color, than grants would be offered to the gifted and talented poor of color to continue their education. Teachers would be trained how to isolate these kids and advance them as candidates for these grants. However, no quotas would be in place and no standards would be dropped.

Read Florence King's article, "The Year Without A Kennedy" for the underlying reason why the elite set up Affirmative Action the way it is. With racial quotas that shut out truly gifted and talented Caucasians and Asians and relaxed educational standards that render the degrees that AA candidates do get virtually worthless, because potential employers will do handstands to circumvent AA hiring practices even if they have to create make busy work for these individuals to keep government watchdogs happy yet their businesses still viable.

For those of you who don't want to be bothered reading King, I'll repeat her observation that there are no Adams, Madisons, Jacksons, or even Roosevelts still holding political office in America today. But then there was no Affirmative Action available for them to retain power, either. The correlation between Civil Rights measures, like Affirmative Action, and the establishment of political family dynasties is too obvious to be a mere coincidence.

They were put in place to guarantee us a political class filled with mediocre dullard Kennnedys, Cuomos, Clintons and Bushes with special seats set aside for even more mediocre dullard politicians of color who they could easily control. The last thing this dullard white elite political class wants is an effective challenge for ofice from the gifted and talented poor of any other race much less their own.

Affirmative Action should never have been initiated. But if it had, then it should have only been set up for one generation or twenty-five years. After that, it should have been shut off altogether. Instead, it has been expanded to Hispanic immigrants who came here voluntarily, not in chains and never suffered the lynching or Jim Crow laws that blacks did.

Because of this, there is no doubt in my mind that the 2012 presidential race will see Jeb Bush - whose wife is a Mexican - being fielded as a Republican candidate for the nation's highest office. Republicans are actively Hispandering even as we speak. I am under no illusions whatsoever that Sarah Palin will get the Republican Nomination. Neither is she, hence the job at Fox News. Not that I think she is that exceptionally bright or talented. I'm just saying it would make absolutely no difference in the grand scheme of things if she were.

Affirmative Action benefits the rich who designed it out of competitive altruism, not the poor, which is why we will have all hell trying to eliminate it altogether

8. rickinchina09 - January 18, 2010 at 03:31 am

Clytemnestra posits a compelling if misguided argument in favor of elminating affirmative action. I myself come from blue collar and rural roots and have always chafed at legacy admissions, which enabled mediocre students like George W. Bush to enter Yale and other elite private universities and colleges. One can certainly make the case that legacy admissions are a form of historical affirmative action in all but name. But then they are restricted to private institutions who rely on this admissions strategy to pacify alumni and preserve endowments, at least in part.

As for the argument that affirmative action in the public academic sphere ensures a similar brand of elitism, the poster will need to analyze further to be convincing. Clearly the policy serves the interests of liberal elites who suffer from White guilt, as Shelby Steele aptly pointed out in an essay nearly two decades ago. It also raises the prospect, however dim or vaguely realized, of strengthening campus diversity. But beyond these spurious gains, we would be hard pressed to find a conspiracy afoot.

O'Connor's recent comments merely serve to point out yet again just how rife with political machinations and social engineering the Court's decision really was. Measured against present racial progress, O'Connor ought to have sided with the dissenters.

One of the great and persistent ironies of affirmative action policy (not as envisioned but as practiced) is that poor and less well-connected students of color too often suffer from it. How often do high school counselors urge the promising among them to apply to institutions for which they are ill-prepared to succeed. And how frequently do scholarship programs like the United Negro College Fun and inner-city magnet school admission decisions favor the outspoken and the well-heeled? Having said this, most magnet programs across the nation still provide a viable conduit for the best and brightest poor students of color to realize their dreams of one day attending a fine institution of higher learning.

As for 11328626, what we see at work here is a quintessential example of the mindset of apologists for the status quo in affirmative action policy which even the Clinton Administration and Professor Renford Reese among others sought to amend. In a tiresome and predictable manner, s/he accuses anyone who opposes the policy of closet racism, thus effectively cutting off all informed and dispassionate debate. Affirmative action policy is for individuals like him/her deemed almost sancrosanct. They do not brook dissent or even a well-intended question or two. What matters is preserving the privilege--and really that is what it is--of race-based admissions and scholarship eligibility (as well as much faculty hiring after the fact) bestowed upon select minorities: Blacks and browns to be blunt. Of course anyone who takes umbrage with the policy must have an ulterior, and sinister motive. Of course it goes without saying that only elite White liberal enablers possess the sound judgment necessary to even think of deviating from the currently enforced policy (hence the tolerance of Clinton's dabbling into the issue, though only after being put under pressure from the legislative Right).

Sadly, another generation will likely pass before the question of the merits and moral legitimacy of affirmative action are held up to judiciary scrutiny again. So O'Connor is probably correct in her forecast. Meanwhile, countless thousands of students of color (with the notable exception of Asian Americans) will be given false hopes of sterling academic success despite weak preparation and often poor self-motivation. Countless others will pass through the system with flying colors (which they likely could have anyway) but having to nonetheless confront the nagging self-doubt which comes with being given an unfair advantage. And still countless other more deserving or better qualified middle class and poor White and Asian kids will have the ivy gates slammed shut on them even if they played by all the rules of the game.

And that is what we're really talking about here: a game. This isn't about historical redress despite Afrocentric rhetoric to the contrary or even making a level playing field. Nor is it even mean-spirited, a sort of tit for tat, or legal form of retribution. No, instead what the Supreme Court decision and its aftermath continues to make painfully clear is that being judged by the content of one's character is still at least five justices away from a living reality.

9. soc_sci_anon - January 18, 2010 at 12:34 pm

warrennored: "Sandy has done enough damage to last several lifetimes. She's off the bench; let her miseducate the poor Cornell students and leave the rest of us alone."

Your argument about miseducation would carry a lot more force if you displayed some ability to, you know, read. No where in the article does it say that Former Justice O'Connor (she's earned the title) is working at Cornell, or even that Cornell students are being assigned to read her work.

10. aifos - January 18, 2010 at 06:06 pm

I will never forget the 2000 election. It was reported that Sandy O was at a Republican event and upon hearing that Gore might win, exclaimed "This is terrible."

Then, she goes on to be the deciding vote in the disasterous Supreme Court decision that SELECTED G. W.Bush.

And Bush went on to wage a needless war in Iraq.

Sandy as since recognized the arrogance and stupidity of her decision, regrets it and has said that it will color her legacy.

IT SHOULD! She is a evil person who sold out to the party and compromised the American electoral system. She is partly responsible for the deaths of hundreds of thousands of Iraqi citizens.

There is a special place in hell for this self-righteous, smug, arrogant, stupid person.

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