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Affirmative Action: What it Means for Oberlin
By Michael Doyle '78

It's been nearly a year since the U.S. Supreme Court gave Oberlin and its collegiate kin a green light to consider race in the college admissions process. In two historic cases involving the University of Michigan last June, the Court reiterated the need for affirmative action. Diversity won, colleges celebrated, and a handful of Oberlin alumni were credited with helping to champion the cause.

"The Court said that the United States cannot be a healthy society if the elites are overwhelmingly white," said Oberlin President Nancy S. Dye. "Having that matter settled feels freeing and helps us move on to other issues."

Richard Lempert '64

Terry Maroney '89
But debate, nonetheless, still percolates at levels both practical and abstract. The Court's 5-4 split demonstrated an enduring philosophical divide that cannot be easily concealed. The justices, moreover, while affirming the importance of racial diversity, still left colleges with plenty of pressing challenges.

The Michigan cases resulted in two rulings; or, as baseball-loving Associate Justice Antonin Scalia put it, a "split doubleheader." The Court accepted the use of race as a "plus factor" in admissions, but also insisted that candidates be reviewed as individuals. Quotas are out, as are point systems that explicitly reward applicants simply for skin color.

So once the champagne fizz flattened, the Court's rulings compelled colleges to look into the mirror and reexamine their own admissions policies. Oberlin's needed no changing, said Dye, affirming that the College has always taken an individually minded, holistic approach in reviewing student applicants, which number about 5,000 annually. (Of the College's 2,883 enrolled students, 6.9 percent are African American and 4.8 percent are Latino, while Asian American and international students comprise 13.2 percent. The percentage of white students—74.3 percent—has declined slightly over the past five years.)

Student organization charters at Oberlin were reviewed; none imposed racial restrictions. Ethnic-themed housing, such as Oberlin's African American House, were studied and survived scrutiny. Oberlin's financial aid policies—which do not turn simply on a student's race—also survived intact.

"We conducted an audit of how we do things and ended up thinking we are in pretty good shape," Dye said.

But the administrative introspection did identify some vulnerabilities. The Mellon Minority Undergraduate Fellowship, for instance, has for years provided research stipends to minority students at Oberlin and other select schools. The race-based fellowship program, which was established in 1989 by the Andrew W. Mellon Foundation, has since been recast to allow factors other than skin color to come into play.

But Dye, looking forward, notes that Justice Sandra Day O'Connor's majority opinion upholding affirmative action also expressed the conviction that in another 25 years, affirmative action should no longer be necessary. This raises the question: What must colleges do now to prepare for the Court's affirmative action-free future?

Fundamentally, Dye said, educational improvements are needed well before students start applying to colleges. In this spirit, Oberlin is planning a new master's degree program for teachers, using the town's public schools as a living laboratory.

"We need not only to savor this moment of major constitutional victory," Dye told College administrators, "but also take on the still enormous task of creating more educational opportunities."

In the meantime, lawyers remain on guard. "In the long run, the attention and threat of continuing litigation may bring about other, hard-to-predict changes," warned Richard Lempert '64, a law and sociology professor at the University of Michigan. "The decision is still fragile; a one-vote swing on the Court might lead to a reversal."

As chair of the committee that drafted the University of Michigan Law School's admissions policy, Lempert helped devise and defend its affirmative action guidelines. "As drafter of the policy, I testified at great length for the university," he says.

In this arena, Lempert was not the only Oberlin graduate to have played crucial roles throughout the affirmative action debate. New York attorney Terry Maroney '89 helped write legal briefs and prepare the lawyers defending Michigan's admissions policies. College trustee William Perlick '48, a high-profile partner in that same firm, helped craft Michigan's defense from the get-go. And Oberlin itself, as an institution, joined a friend-of-the-court brief supporting affirmative action.

The Rulings Examined
The University of Michigan affirmative action cases involved two distinct policies, which in turn prompted two Supreme Court rulings.

The case known as Gratz v. Michigan challenged the university's undergraduate admissions program. To help sort through 18,000 annual applications, the university assigned points for certain criteria. Favored minority applicants—African Americans and Hispanics, but not Asian Americans—received an automatic 20 points out of a total of 150. By contrast, as noted by Chief Justice William Rehnquist, "even if [an applicant's] extraordinary artistic talent rivaled that of Monet or Picasso, the applicant would receive, at most, five points under [this] admissions system."

In a 6-3 ruling that had been predicted by many legal observers, the Court struck down this hard-and-fast assignment of advantage to minority applicants. The policy, concluded Rehnquist for the majority, was a violation of the 14th Amendment's Equal Protection Clause and the Civil Rights Act of 1964.

The other case, known as Grutter v. Michigan, involved Michigan's law school. Rather than assigning points, the law school maintained a policy of admitting a "critical mass of underrepresented minority students"; this "mass" averaged about 13 percent of each class.

The law school's policy affords minority applicants a definite advantage. For example, in the year 2000 Michigan admitted 209 out of 422 white applicants who scored between 163 and 167 on the Law School Admission Test. The same year, Michigan admitted 63 out of 77 African American applicants who had the same LSAT score range.

The Court, in its 5-4 decision authored by O'Connor, concluded that maintaining racial diversity is a compelling state interest. Moreover, O'Connor wrote, the law school's system was narrowly tailored to meet that interest. She noted that the law school maintains a flexible approach, in which race is "one factor among many" considered in admissions decisions, and she underscored the point that the benefits of diversity are "important and laudable."

"At Oberlin, we were much more focused on the law school case all along," Dye said, hailing it as a "great victory."

But O'Connor's majority opinion drew several sharp dissents. Associate Justice Scalia bitterly denounced Michigan's "mystical ‘critical mass' justification for its discrimination by race (that) challenges even the most gullible mind." Scalia further warned that "controversy and litigation" will certainly continue, and he all but invited lawsuits with a road map identifying half-a-dozen routes that future challenges might follow. His skepticism has been shared by others, including outspoken Oberlin alumni.

"Polls show that professors and students of all races are increasingly disenchanted with affirmative action," asserted syndicated newspaper columnist Michelle Malkin '92. "And more and more multi-racial families like mine are defying intrusive government inquiries into our skin color."

Malkin practices in the boisterous court of public opinion through her conservative news column and Fox News Channel appearances. Hers is only one of the multiple dimensions in which the affirmative action debate has played out. Consider the social sciences.

In reports used to challenge affirmative action by the conservative Center for Equal Opportunity, Robert Lerner '75 analyzed admissions information from many colleges and universities. He found that the median grade point average of white students admitted to the University of North Carolina at Chapel Hill in 1995 was 3.99. For African American students, it was 3.6. At the University of Virginia Law School, Lerner found African American students 731 times more likely to win admission than white applicants with similar grades and test scores.

"They are pretty brutally blunt findings," Lerner told the Chronicle of Higher Education. "It is hard to spin them."

The findings from these studies were so blunt, in fact, that some liberal advocacy groups resisted Lerner's subsequent nomination to oversee the National Center for Education Statistics. The Bush administration announced Lerner's nomination to the Education Department post on June 2; as of mid-October, the Senate had not yet acted on it.

Statistics, of course, can cut in every direction. While Lerner was analyzing the relative qualifications of minority applicants, Lempert was identifying the relative achievements of minority graduates. After drafting the Michigan Law School's admissions policy, Lempert and two colleagues examined how African American and Hispanic graduates fared.

"Michigan's minority students earned as much in practice as white graduates. They were as happy as white graduates, and they did more in the way of pro-bono and other public service," he reported.

Lempert wears two hats as Michigan's Eric Stein Distinguished University Professor of Law and Sociology, where he both teaches evidence and studies how courts use statistics. These pursuits started young, when at the age of 6, he decided he wanted to become a lawyer.

"It was the only career for a Jewish boy who could not stand the sight of blood," Lempert said.

The sociology path developed later when Oberlin sociology professor Kiyoshi Ikeda got him involved with research and treated him like a graduate student. Lempert went on to earn a PhD and law degree at Michigan.

A generation after Lempert left Oberlin, Terry Maroney arrived. She majored in English and women's studies, and for six years after graduating, held hands with people in need. She worked as a rape crisis counselor, an HIV educator, and an advocate for crime victims at the New York City Gay and Lesbian Anti-Violence Project. Law school soon beckoned.

"I found myself being drawn more and more toward the legal issues facing my clients, and I got to know a number of lawyers as colleagues," Maroney said, calling law "the most exciting and interesting thing I could do with myself, and also a great tool for helping people."

After graduating from New York University Law School in 1998, Maroney arrived at the law firm of Wilmer, Cutler & Pickering, the firm representing the University of Michigan since the first lawsuits were filed in 1997. Maroney followed the cases from the sidelines until the Supreme Court agreed to hear the challenges. Opportunity knocked.

"The team needed someone to research a few specific issues for the brief," Maroney recalls. "I was in the right place at the right time, so I took it on."

She dug deeply into such specific realms as the Supreme Court's past rulings on race and reapportionment. In time, Maroney says, her role "morphed" from research grunt into a full-fledged member of the team preparing the legal briefs defending Michigan's undergraduate admissions program. Maroney had to explore—and then rebut—the evidence and arguments surrounding "race-neutral alternatives" for admissions. She then had to integrate her findings into the larger case.

"Writing the brief was a true collaboration," Maroney recalled. "There were many sessions of sitting around a table, five of us, and reviewing and editing every single word, over and over."

Having prepared the arguments, Maroney and her colleagues next tried to destroy them. She and another Wilmer, Cutler & Pickering associate wrote dozens of questions with which to assault their own case during extensive moot court practices preceding the Court's oral argument.

Marching close behind came 100-plus amicus briefs—an apparent record—filed by myriad interested parties.

Among the skeptics was the Center for Educational Opportunities, which filed a brief citing Robert Lerner's conclusion that "no scientifically valid statistical evidence has been presented to show that racial and ethnic diversity in schools benefits students."

But the vast majority of amici briefs came affirmative action allies. The most influential may have been filed by retired military officers, whose arguments supporting diversity were saluted by O'Connor during oral arguments and in her majority opinion.

Lempert contributed to the drafting of two friend-of-the-court briefs filed by the American Sociological Association and Michigan's Black Alumni Association. Oberlin joined 27 other peer institutions—including Amherst, Bryn Mawr, and Pomona—in a brief articulating the special perspective of the select liberal arts college.

The colleges' brief reminded the Supreme Court that Oberlin "almost uniquely" among colleges has been "steadily attentive to the importance of enrolling black Americans since well before the Civil War." More broadly, this group of often-competing colleges joined forces to make an argument that ultimately ruled the day: "Diversity in all its aspects is one of the factors that make American colleges and universities unique, educationally superior, and the envy of the world."

– Michael Doyle ‘78 is a reporter in the Washington bureau of McClatchy Newspapers.