PERSPECTIVE ON AFFIRMATIVE ACTION : At a Fork in the Road of Fairness : The court ruling against Texas’ law school is countered by an endorsement of UC Berkeley’s admissions policy upholding the goal of diversity.

Two contradictory and virtually simultaneous rulings last month by different branches of the federal government have put affirmative action at a historic crossroads. In Louisiana, the U.S. 5th Circuit Court of Appeals declared that race could no longer be a factor in admissions decisions at the University of Texas law school. In California, the U.S. Department of Education’s Office of Civil Rights concluded that the University of California at Berkeley could continue to take race into account in undergraduate admissions. Should the Texas ruling triumph, affirmative action in higher education will be a thing of the past.

Though widely hailed by conservatives, the ruling by the 5th Circuit was anything but conservative. On the contrary, Hopwood vs. Texas was profoundly radical in its contempt for the precedent set by the historic Bakke decision, in its disrespect for the freedom of universities to exercise educational judgment in seeking diverse student bodies, and in its evident eagerness to eliminate affirmative action rather than bring flawed programs into compliance with existing law. In a remarkable display of ideologically driven aggression, the judges even directed the lower court to consider the question of damages, a remedy never extended to generations of black children relegated to inferior, segregated schools.

In contrast, the Department of Education ruling was a model of prudence. The question before its Office of Civil Rights was whether the undergraduate admissions practices of UC Berkeley were consistent with the legal standards set by Bakke and by long-standing interpretations of Title VI of the Civil Rights Act of 1964. After an exhaustive seven-year investigation begun under the Bush administration, the answer was yes: Berkeley, the Department of Education found, employed no quotas, limited admission to students who met its high qualification standards and considered race as but one “plus” factor among many in a truly competitive admissions process. The effect of Berkeley’s affirmative action policy, in fact, was a raising of academic standards, with grades, test scores and graduation rates increasing for all groups.

Most important was the finding that reaffirmed the Bakke decision’s argument that diversity is a “compelling interest” of educational institutions. “Colleges and universities have a 1st Amendment right to seek diversity in admissions,” the report concluded, “to fulfill their academic mission through the ‘robust exchange of ideas.’ ” Such a diverse student body, the Office of Civil Rights found after a meticulous examination of the Berkeley admissions process, could not be attained through a race-neutral policy.

Of course, special consideration for minorities is not the only type of affirmative action, despite the widespread belief that the only beneficiaries are Latinos and African Americans. In reality, college admissions policies grant preferences (“affirmative action”) for many groups--the children of alumni, athletes, the rich and well-connected, the geographically underrepresented.

Lately there have been calls for preferences for the socially and economically disadvantaged regardless of race. Conservatives such as Newt Gingrich and Dinesh D’Souza have been among the supporters of this idea. The issue then is not, as many mythologists of the right would have it, one of the rights of individuals versus the claims of groups; rather it is a question of which group claims are legally and morally legitimate.

The one type of affirmative action with the strongest moral foundation, that for historically excluded racial and ethnic minorities, now finds itself under bitter political and legal assault, while affirmative action for the privileged remains a routine and legally unchallenged practice at America’s colleges and universities.

Another myth distorting the national debate is that it is easy to identify and measure “merit” and hence to select the “most qualified.” Yet, above a certain floor of academic qualification, there is no correlation between grades and test scores on the one hand and rates of graduation from professional school and subsequent work performance on the other. The “most qualified” person for admission to medical or law school may not be the one with the 3.8 GPA and test scores in the 96th percentile, but rather another applicant with a 3.6 GPA and scores in the 88th percentile. Both the courts and the public need to be far more wary of measures that define “merit” by numbers alone than were the judges in the Hopwood case.

The most politically consequential myth about affirmative action is that the vast majority of Americans oppose it and desire its elimination. In separate Gallup and CNN/Time polls, fewer than 25% of Americans favor the elimination of affirmative action, while almost 65% support, in President Clinton’s phrase, “mending” rather than “ending” it. In California, widely considered a hotbed of opposition to “preferences,” respondents in a Field poll taken last fall ranked affirmative action 25th out of 27 issues (just ahead of energy supply and road repairs) about which they were “extremely concerned.” In fact, the California Civil Rights Initiative, the leading edge of the national assault on affirmative action, managed to qualify for the ballot only with the assistance of massive infusions of money; grass-roots volunteers supplied fewer than 15% of the necessary signatures.

The choice now facing the courts and the public could hardly be more clear. People who believe that America is a fairer and more meritocratic country than it was 30 years ago can only hope that the spirit embodied in the Department of Education’s finding will prevail and that Hopwood will be seen as only a temporary detour in our collective willingness to confront our tangled racial history. At stake is nothing less than the future of the American dream--that the United States should be the land of opportunity for all of its citizens.