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Opinion: Too Tired to Talk About Affirmative Action

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Supreme Court Justices John Roberts, Anthony Kennedy, Ruth Bader Ginsburg, Stephen Breyer, and  Elena Kagan attend President Obama's State of the Union speech on January 24, 2012.

Everyone was talking about affirmative action on Wednesday. But my pen was silent, as eight Supreme Court justices fielded arguments in a case challenging race-conscious admission to public colleges (Justice Elena Kagan has recused herself because she worked on the case earlier as an Obama administration lawyer.) I was silent because I am tired.

I am tired of talking about affirmative action. I am tired of explaining why it is still necessary in the 21st Century. I am tired of the divisiveness of the discussion. I am tired of having to justify my place at the table. Just tired.

I was born ten years after Brown v. Board of Education, the landmark decision of the U.S. Supreme Court that declared state laws establishing separate public schools for black and white children unconstitutional. Brown overturned an earlier decision from 1896, Plessy v. Ferguson, which had previously allowed state-sponsored segregation in all contexts.

In 1964, President Johnson signed the Civil Rights Act. The most sweeping civil rights legislation since Reconstruction. This may seem like ancient history. But it isn’t. Most Americans alive today were alive when this law was passed. It prohibits discrimination of all kinds based on race, color, religion, or national origin. It was a hopeful time for a black child to be born in America. And I was a hopeful black child.

The term “affirmative action” comes from a 1965 Executive Order issued by President Johnson. It required (and still requires) government contractors to "take affirmative action" toward prospective minority employees in all aspects of hiring and employment. And contractors must take specific measures to ensure equality in hiring and must document their efforts. On Oct. 13, 1967, the order was amended to cover discrimination on the basis of gender. In 1969, President Nixon reinforced the policy: "We would not impose quotas, but would require federal contractors to show 'affirmative action' to meet the goals of increasing minority employment." It was all good.

But I don't really remember much of that. Instead, I came of age in the shadow of the Bakke decision. Bakke came down during my girlhood and awakened me to the American obsession with race. This was one of those big landmark Supreme Court decisions that had people marching on the courthouse steps waving their placards, and camera crews in position to catch the parties as they emerged from the arguments.

In Bakke the Justices placed limitations on affirmative action for the first time, to ensure that providing greater opportunities for minorities did not come at the expense of the rights of the majority. Affirmative action was unfair, the Court said, if it led to "reverse discrimination." I decided to become a lawyer.

There were several important affirmative action cases in my law school years culminating in the one that came down the year I graduated from Law School, City of Richmond v. Croson, a challenge to affirmative action programs, at the state and local levels. The Court considered a Richmond program setting aside 30 percent of city construction funds for black-owned firms and found affirmative action to be a "highly suspect tool. The Court held that an "amorphous claim that there has been past discrimination in a particular industry cannot justify the use of an unyielding racial quota."

For the first time, the justices held affirmative action must be subject to "strict scrutiny" to “smoke out” illegitimate uses of race by assuring that the legislative body is pursuing a goal important enough to warrant use of a highly suspect tool. Affirmative action was under assault.

During my time in the Clinton White House, President Clinton stepped to the plate, reaffirming the need for affirmative action. He acknowledged that, in a multicultural society, the issue had become a complicated one, and called for the elimination of any program that "(a) creates a quota; (b) creates preferences for unqualified individuals; (c) creates reverse discrimination; or (d) continues even after its equal opportunity purposes have been achieved. But he cited the continuing existence of systematic discrimination in the United States.

Then in 2004, in the most significant case since Bakke, Justice Sandra Day O’Connor struck a blow in favor of affirmative action. In a 5-4 decision the Court upheld the University of Michigan Law School's affirmative action policy in the context of higher education. The Justices ruled that race can be one of many factors considered by colleges when selecting their students because it furthers "a compelling interest in obtaining the educational benefits that flow from a diverse student body."

In fact, in that case, Grutter v. Bollinger, Justice O’Conner said affirmative action at universities might be necessary for another quarter-century to ensure that classrooms reflect the nation's racial diversity.

But we are too restless about race in America, to let the law lie for that long. Here we are a less than a decade later, with Fisher v. University of Texas, in which a young white woman (Abigail Fisher) is challenging the University of Texas at Austin, which employs a two-pronged admissions system. The school fills 80 percent of its freshman slots by admitting applicants who graduated in the top ten percent of their high school class. This first method focuses strictly on grades (Fisher did not pass this bar). The school then admits the remaining 20 percent of students by considering their academic and personal achievement. These attributes can include extracurricular activities, work experience, leadership potential, and personal background – including race and class (This forms the basis of Fisher’s challenge).

The case will turn largely on the court’s reading of the aforementioned decision in Grutter v. Bollinger, and the decision can go one of three ways:

1. A holding that leaves things more or less as they are;

2. A holding that further limits consideration of race or ethnicity;

3. A landmark ban on race-based admissions policies

Of course, nothing the Supreme Court does is ever that simple. Which is why I decided to pick up my pen today. To simplify. And calm the debate. First of all, I do not like the tone. The divisiveness. The scrapping for the increasingly small pie. But clarification is necessary.

Obviously, if the Court leaves well enough alone, or issues across-the-board ban on affirmative action, that will be easy to read. But the Justices are most likely to stake out a position somewhere in between.

For example, the Court may very well affirm Grutter, with all due deference to Justice O’Connor, who has retired and been replaced by Justice Alito, no friend to affirmative action. The Justices could then, within the boundaries of Grutter, tighten the requirements imposed upon colleges and universities that seek to employ affirmative action to achieve diversity. Indeed, the Justices could make the test for race-based admissions so strict that no institution could ever pass it. That kind of ruling could be akin to an outright ban on affirmative action.

I’ve been through that exhausting tap dance before. In 1997, a state ban on all forms of affirmative action was passed in California: "The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting." Proposed in 1996, the controversial ban had been delayed in the courts for almost a year before it went into effect. At the time, I was a member of the Board of Directors of the Alumni Association of the Berkeley Law School. So despite the federal preference for affirmative action, at the time, our hands were tied. The voters had spoken. The complexion of the law school changed remarkably, from one year, to the next.

That experience taught me that, while educators on both sides of the affirmative action aisle will say they value diversity, we define it differently, depending on our backgrounds, and educational experiences and goals. And achieving diversity, however one defines it, is not as easy as one might think. UC Berkeley has gone to great lengths to achieve diversity after Proposition 209, with mixed results. And is there no guarantee that every university would distribute admissions among all public high schools, recruit aggressively in poorer communities or give some consideration to low-income applicants or those from underperforming schools, in order to achieve diversity. And, even if they do, might not some enterprising young woman, backed by a conservative think tank, challenge such measures as unconstitutional in five years time? I'm getting tired just thinking about it.

A decision in Fisher will be issued until next year.