Stephen Vasciannie IN THE Closing of the American Mind (1987), Allan Bloom (then a professor at the University of Chicago) made a number of stinging comments about the practice of affirmative action in the United States. In essence, Bloom argued that affirmative action had led to a lowering of the academic standards applicable to black students at major American universities, and had undermined the prospects of student camaraderie between Black and White students.
As part of his argument on the lack of Black-White student interaction on American campuses, Bloom suggested that White students yearned to see all students as equal and tended to assume that "friendship is another aspect of equal opportunity". The problem, he argued, lay mainly among the Black people whose self-esteem had been undermined by affirmative action.
But let me not put words into Bloom's mouth. He wrote: "The worst part of (affirmative action) is that Black students, most of whom avidly support this system, hate its consequences... They believe that everyone doubts their merit, their capacity for equal achievement. Their successes become questionable in their own eyes... Those who are not good students, but have had the same advantages as those who are, want to protect their position but are haunted by a sense of not deserving it. This gives them a powerful incentive to avoid close associations with Whites, who might be better qualified than they are and who might be looking down on them. Better to stick together, so these subtle but painful difficulties will not arise" (page 96).
SIMPLISTIC
Bloom has presented a disappointingly simplistic view of a difficult issue. To be sure, the type of affirmative action which singles out one group for preferential treatment on the grounds of race can generate resentment among members of the group not afforded the preference, and can also affect the self-confidence of those who have obtained the preference.
But, at the same time, it is unfair to suggest, as Bloom does, that affirmative action lies at the heart of limited cross-racial interaction on American campuses. In the first place, Blacks and Whites may not mix freely because there remains a pronounced legacy of distrust, stemming from the historical facts of slavery, Jim Crow segregation, and crude assumptions of white superiority that remain in the hearts of many.
Secondly, even if we were to assume that every Black person could assume Mandela-like forgiveness for the past, there would remain cultural differences among Blacks and Whites. America may be the melting pot in many ways, and racial progress has been made, but there are still significant points of cultural difference that could explain some patterns of socialisation.
IS THERE INTER-RACIAL TRUST?
Moreover, with regard to the present, the Black person who gravitates largely or even exclusively to Black friendships may justifiably see this as an affirmation of self in the context of a hostile environment. Even today, there is strong evidence of discrimination against African Americans in areas of employment, housing, and education. Victims of such discrimination, as well as the Black man who cannot get a cab driver to stop for him in parts of Manhattan, may well feel reluctant to take the hand of friendship from the jovial, presumably colour-blind White man who comes along.
But enough of Bloom. Last week, the United States Supreme Court addressed the question of affirmative action in two different, but clearly related cases, Grutter v. Bollinger et al, and Gratz v. Bollinger et al. In the former, the petitioner Grutter, a white Michigan resident, complained that the Michigan Law School discriminated against her by denying her admission pursuant to an admissions policy which gives preferential treatment to applicants belonging to certain minority groups.
EQUAL PROTECTION
Similarly, in Gratz v. Bollinger et al, two petitioners, Gratz and Hamacher, both White Michigan residents, sued on the basis that the University of Michigan's College of Literature, Science and the Arts had violated their constitutional right to equal protection of laws and other rights to non-discrimination, by rejecting their college applications. They maintained that the university's admissions and transfer policy unjustifiably gave advantages to minority applicants.
In reaching its decisions in both cases, the Supreme Court took the opportunity to reiterate that race-conscious admissions policies are not always automatically unconstitutional. Rather, in each case, courts should examine racial classifications to ascertain whether they may be justifiable in the circumstances; and, in making this assessment, courts should apply the standard of strict scrutiny. The standard of strict scrutiny is not easy to overcome: the body seeking to justify preferential treatment on grounds of race must be able to show that a compelling state interest requires the application of preferential treatment. The preferential treatment applied must also be narrowly tailored to address the compelling interest in question.
DIFFERENT DECISIONS
In applying this standard to the cases of Grutter, Gratz and Hamacher, the Supreme Court was divided in several different ways. In Grutter v. Bollinger, the majority took the view that the admissions policy of the Michigan Law School did not amount to unjustifiable discrimination, but in Gratz v. Bollinger, the majority found that the University of Michigan acted in a discriminatory manner. In the end, the difference between the cases turned formally on the specific method used by the law school and the university to achieve the compelling state interest of promoting diversity among tertiary level students.
Given that both cases reiterated the view that affirmative action may be valid in some circumstances, the Supreme Court correctly continues to acknowledge the lingering effects of America's racial history. But the decisions also suggest that judges on the court do not have a common vision on how to address issues of diversity and division in American education.
The majority in Grutter v. Bollinger expressed the hope that affirmative action will come to an end in 25 years, but the minority, including Justices Clarence Thomas and Antonin Scalia, would apparently strike down every affirmative action programme today. Presumably, they believe affirmative action helps to close the American mind.
Stephen Vasciannie is Professor of International Law at the University of the West Indies and consultant in the Attorney-General's chambers.
