The Color Bind

EVER SINCE A FEDERAL COURT outlawed affirmative action at the University of Texas, Austin, law school last year, promoters of "diversity" have prophesied disaster. Now, as the school admits its first post-affirmative-action class, their nightmare is coming to pass. If the end of affirmative action is not really analogous to the onset of Jim Crow, to many Latino and black students, the distinction seems hardly worth the trouble of making. As Diana Saldana, president of the Chicano-Hispanic Law Students Association put it, "It took us 30 years to get here, and it took them 24 hours to dismantle any progress we have made."

Last year the highly ranked UT law school admitted a class that was 5.9 percent black and 6.3 percent Hispanic. This year (with roughly 80 percent selected, and the university projecting no huge shift in proportions of those yet to be picked), the black percentage stands at just over .7 and the Hispanic at just under 2.3. Angelyque Campbell, a black student completing work on a combined law and public-policy degree, believes that the school is in danger of becoming an "ivory white tower" that no longer values minority students. To Ward Connerly, who led the fight for the abolition of affirmative action in California state government, UT law school's numbers reveal something even more troubling. They reflect "the magnitude of the preferences we have been giving at many of our colleges... and accentuate the tragedy of affirmative action." Such statistics, he says, should not inspire alarm but motivate people to "put their noses to the grindstone and get better prepared."

University officials, who feared a race-relations fiasco if no black law students matriculated, unleashed faculty members, alumni and other students to urge the few who were accepted to actually attend. As a result, at least one of the six blacks (and half of the 18 Mexican-Americans) admitted to date seem to be planning to enroll. Still, the school will inevitably be a whiter place. If he has to face classes with no black students in them this fall, "I will be very depressed," confessed Patrick Woolley, a black assistant law professor, adding, "I'm very depressed about it now. As it is, even with affirmative action, there are only a handful of black students in a class of a hundred."

For affirmative action's champions, the whitening of UT's law school is an unsettling harbinger of what awaits selective schools across America. "I'm finding it difficult to avoid becoming an alarmist," confided Christopher Edley Jr., the Harvard law professor who served as President Clinton's affirmative-action adviser. Although the Fifth Circuit Court decision technically is limited to scholarship and admissions programs at public institutions in Louisiana, Mississippi and Texas, some educators fear that the court's reasoning may eventually be broadly applied --not only to public universities in other states but to all universities (including prestigious private ones, such as Harvard) that receive government funds. Such concerns led Edley and Harvard education professor Gary Orfield to launch a major series of conferences largely devoted to reassessing affirmative action in today's society.

In some sense, UT law school brought the crisis on itself by putting an affirmative-action program in place that flagrantly flouted Supreme Court guidelines. Though initial sorting of applicants was done purely on the basis of grades and Law School Aptitude Test scores, the school went afield by applying totally different standards and using radically different admissions procedures for blacks and Mexican-Americans than for whites and others. Four white applicants sued and won. Now they are back in court seeking $5.5 million in damages.

The prospect for minority UT applicants outside the law school does not seem nearly as bleak--largely because other disciplines rely less on test scores and grades. (Thanks in part to a vigorous recruitment effort, admission offers to black freshmen at UT were only a bit lower than last year, and offers to Latinos have actually risen slightly.) Heavy dependence on test scores, however, is typical of selective law schools--as well as of medical schools and elite universities. And without some form of affirmative action, many blacks and Latinos who currently get into such institutions are certain to be excluded. Indeed, an analysis of 1990-91 law-school applicants just published in the New York University Law Review found that a colorblind test- and grades-driven admissions policy would decimate the ranks of Latino and black law students. Of the 3,435 blacks accepted by at least one of the more than 160 ABA-approved law schools in America, only 687 would have made it purely on the basis of their tests and grades, concluded Linda Wightman, a former official at the Law School Admissions Council. Colorblind policies, in other words, may lead to "levels of segregation not seen in a quarter century," worries Jerome Karabel, a sociology professor at the University of California, Berkeley, and chief architect of that university's affirmative-action program--which the regents voted in 1995 to abolish. That vote (underscored by last year's anti-affirmative-action ballot initiative in California) has not yet fully taken effect within the UC system. Already, however, administrators there report that applications from Chicanos, blacks and American Indians have dropped. When the regents' resolution is fully implemented, the numbers accepted are likely to plunge, conjectures Karabel on the basis of the university's experience with Filipinos. In 1989, when Filipinos (then considered an underrepresented minority) were covered by affirmative action, 227 came as freshmen to UC, Berkeley. That year the university began to phase out special consideration for Filipino applicants, reasoning that their success in the California public-school system demonstrated that they no longer need such assistance. By 1993 the number of freshmen matriculating had dropped to 54, where it has more or less remained ever since. Latinos and blacks, reasons Karabel, will probably be even harder hit, since their grades and test scores on average are lower than those of Filipinos.

Serious researchers dismiss the notion that affirmative action based on socioeconomic status can be much of a substitute. A wide-ranging statistical analysis by Thomas Kane of Harvard's Kennedy School of Government demonstrates what critics have long assumed: since so many poor whites and poor Asians do relatively well on standardized tests, class-based but colorblind affirmative action is more likely to help them than it is to assist poor blacks and poor Latinos--at least as long as selective schools put so much stock in tests.

Foes of affirmative action think all the handwringing is unwarranted. Why worry, they say, if certain blacks and Latinos don't get into first-rank schools? "We have no divine right as blacks to go to the University of Texas law school with lower SAT scores," asserts Larry Elder, a KABC radio host whose conservative views have drawn fire from some fellow blacks. Elder and others believe that less well prepared students can always attend third- or fourth-rate institutions, where they are likely to do better at any rate. Kane's data suggest, however, that minority students may, in fact, not do better at such schools, that a high-quality educational institution can make up for a multitude of deficiencies. Minority students who go to selective schools are more likely to graduate than are their counterparts who are equally able but attend less prestigious institutions (excluding historically black colleges, which have relatively high graduation rates). One reason, believes Karabel, is that elite schools are generally not commuter schools, meaning students are less likely to have to put up with distracting noneducational influences. Such schools also are simply more likely to offer an atmosphere where both high academic achievement and careers are fostered.

Moreover, as supporters of affirmative action argue, public institutions have a much more complex agenda than simply admitting those who score best on tests. They are supposed to serve the public interest, which, among other things, means considering the needs of the taxpayers who support them. Claudia Valles, a Mexican-American and third-year law student at UT, Austin (and the first member of her family to go to college), observed that for people from backgrounds like hers, a state school with low tuition may be their only real shot at a good education. Why, she asks, should Mexican-Americans, who pay so much of Texas's taxes, be denied that opportunity? Saldana, a third-year student and former migrant worker, makes much the same point: "I worked hard to get where I'm at. It offends me that an Anglo can take my seat because they're unwilling to consider my background."

The trade-off is particularly clear for medical school. A study last year by physicians at the University of California, San Francisco, found that few white doctors care to practice in minority communities. In fact, they were more likely to go to poor white areas than to affluent black and Latino neighborhoods. Barring a big change in behavior or residential patterns, a decrease in the numbers of blacks and Latinos in medical school will inevitably result in fewer doctors in communities of color. For critics such as Elder and Connerly, the answer is not affirmative action but a wholesale upgrading of schools and a massive readjustment of attitudes. "We need to do better in high school and better on aptitude tests. And I predict that we will," declares Elder. But that is not a short-term solution. So many educators (motivated largely by the desire to keep minority numbers up) argue for relying on broader measures of merit--such as motivation, talent and obstacles overcome--instead of focusing so much on the ability to do well on tests. Even the best of tests, they point out, are a limited measure of capability. Wightman's study, for example, found no real difference in either graduation or bar-passage rates between those minorities who would have been admitted without affirmative action and those admitted because of it. The problem, however, is convincing a skeptical public--and equally skeptical educators--that de-emphasizing tests would create a more just process.

Elder and Connerly are no doubt right that better schooling could theoretically render affirmative action in colleges obsolete. Connerly offers the guess that the process of upgrading education --and educational expectations--might take no more than two or three years, although conceding, when pushed, that it might perhaps take 10. In light of the awful state of inner-city public education, even the more conservative projection seems wildly optimistic. Still, for any number of reasons, people--at least those in the public eye--don't seem to get nearly as passionate about upgrading bad schools and improving conditions in poor communities as they do about tearing down affirmative action. But unless they do, 20 years from now America will be in the midst of a new debate as citizens across the political spectrum wrangle over why, even with affirmative action gone, huge gaps in educational achievement remain.