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| From the October 2003
Anthropology News, p 9
Affirmative Action and Lee D Baker With HIV/AIDS ravaging developing countries, war plaguing Iraq and Liberia, and economies around the world in dire straights, one wonders what the state of affairs really is when a glimmer of hope in these otherwise troubling times comes from US Supreme Court. In June 2003, the Court handed down two very important and surprising decisions. One was Lawrence, et al v Texas (2003), which reversed Bowers v Hardwick (1986) and rendered a Texas statute criminalizing same-sex intercourse unconstitutional. The other, Grutter v. Bollinger, et al (2003) affirmed the Court of Appeals for the Sixth Circuit ruling that the University of Michigan Law School could employ “narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body.” The Court carefully endorsed Justice Lewis Powell’s opinion in Regents of U of California v Bakke (1978) “that student body diversity is a compelling state interest that can justify using race in university admissions.” Role of Amicus Briefs Critical to Sandra Day O’Connor’s majority opinion was the many “friend of the court” briefs that poured in to support Michigan’s case. As she noted in her opinion, she relied on “reports” as well as “numerous studies” cited in the briefs that show “student body diversity promotes learning outcomes.” She directly quoted a brief prepared by the American Educational Research Association; explaining how a diverse student body “better prepares students for an increasingly diverse workforce and society, and better prepares them as professionals.” Clearly it was the idea that “diversity makes productive citizens” that made affirmative action a compelling state interest and not that it enhances learning and enriches students’ understanding of the world. Compared to the briefs compiled by scholars, O’Connor gave more weight to briefs submitted by 3M, IBM, GM, and a group of retired military officers, all of whom supported the law school’s policies and the need for affirmative action. Nevertheless, the range of social science research in the briefs was compelling and gave her argument legitimacy and authority. Sadly, anthropological research was absent from the dozens of books, reports and articles that bolstered briefs submitted by the American Sociological Association (ASA), the American Psychological Association (APA) and American Educational Research Association (AERA). The AAA was party to the American Council on Education’s influential brief, and we were in good company. We were listed along side such organizations as the Educational Testing Service, American Association of University Professors, American Association of University Women, United Negro College Fund, and 50 other influential higher education associations. We were, however, the only organization that represented a field of knowledge or a discipline. Again, the research that supported this brief lacked any ethnographic methods or anthropological enquiry that I could easily recognize. Qualification of Critical Mass Unfortunately, anthropology did not offer much in terms of research this time, but it is not too late. An integral part of the admissions process of selective schools is reaching a critical mass of underrepresented students of color. O’Connor was vague and explained that a critical mass was simply “a number that encourages underrepresented minority students to participate in the classroom and not feel isolated,” but she emphasized that “the Law School’s goal of attaining a critical mass of underrepresented minority students does not transform its program into a quota.” Chief Justice Rhenquist, along with Associate Justices Scalia, Kennedy, and Thomas balked and hammered on this one point. Scalia called “the University of Michigan Law School’s mystical ‘critical mass’ [a] justification for its discrimination by race,” and Rhenquist argued that “stripped of its ‘critical mass’ veil, the Law School’s program is revealed as a naked effort to achieve racial balancing.” Scalia went so far as to invite more lawsuits, suggesting that “some future lawsuits will presumably focus on whether the discriminatory scheme in question . . . has so zealously pursued its ‘critical mass’ as to make it an unconstitutional de facto quota system, rather than merely ‘a permissible goal.’” Sooner than later, lawsuits will be filed probing this very issue and anthropological theory and ethnographic methods I think are well suited to explore this issue. The dissenting Justices were hell-bent on quantifying a “critical mass,” I think anthropologists are well positioned to offer affirmative action proponents research and analysis that can qualify a “critical mass.” Clearly we don’t have all the answers or all the research compiled, but helping to qualify and exploring what a critical mass looks like is going to be an issue that the Society for the Anthropology of North American will address in its upcoming conference in Durham/Chapel Hill April 30 through May 2, 2004. Lee D Baker is editor of Life in America: Identity and Everyday Experience (2004) and president-elect for the Society for the Anthropology of North America. |
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