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Affirmative action's evolution │ csmonitor.com Page 2 of 3

^[• For black adults, the unemployment rate was twice that of whites, and for black teens it was three times. Today, both statistics remain unchanged.

• The median income of a black family in 1978 was 60 percent of the median of a white family. Today, it is 66 percent of white-family income.

• In 1978, blacks represented 11.5 percent of the population, but they were only 1.2 percent of the lawyers and judges, 2 percent of the physicians, 2.3 percent of the dentists, 1.1 percent of the engineers, and 2.6 percent of college and university professors. Today blacks represent 12.3 percent of the population, and are 5.1 percent of the lawyers and judges, 5.6 percent of physicians, 4.1 percent of dentists, 5.5 percent of engineers, and 6.1 percent of college and university professors.^]

Conclusions from the numbers

Some analysts point to such statistics as proof that while a post-Bakke scaled-down version of affirmative action has helped bolster the ranks of black professionals, African-Americans as a whole have been left behind.

"Despite all the talk of the creation of a black middle class, the relative position of the black community to white America has not changed much," says Andrew Hacker, a Queens College political-science professor and author of "Two Nations: Black and White, Separate, Hostile, Unequal."

While such statistics might have provided compelling evidence for the justices debating affirmative action in the 1970s, since the Bakke decision black-white equality is no longer the intellectual underpinning that drives the affirmative action debate.

"I don't think anyone would disagree with Justice Marshall that there was a long history of tragic discrimination in the US, and as a result the socioeconomic status of African-Americans remains lower than other racial and ethnic groups," says Roger Clegg of the Center for Equal Opportunity, a conservative public-interest law group in Sterling, Va. "But a majority of the court [in Bakke] did not think that justified discrimination in favor of African-Americans."

To some analysts, the Bakke decision was more than a turning point; it was a U-turn.

"After Bakke, the debate shifted. There was no longer any talk of creating a racially just society," says john a. powell (who does not capitalize his name), a law professor at Ohio State University and executive director of the Kirwan Institute for the Study of Race and Ethnicity in the Americas.

"It is clear we are going backwards," he says. "High schools across the country are resegregating, and the court is saying this is not a constitutional injury. They are raising this huge barrier for people of color."

What's permissible

Because affirmative-action plans take race into account, those using a race-based plan must show two things to avoid violating constitutional safeguards. First, they must show there is an important, persuasive reason to use race as a factor in a selection process. Second, they must show there is no way to achieve the same goal without using race as a factor.

To Marshall, the compelling government interest was to reverse and remedy the effects of discrimination that had long excluded most blacks from full participation in mainstream American life.

But because this viewpoint could not attract a fifth vote - that of Justice Lewis Powell - that rationale died in 1978. It was replaced with the concept of diversity.

Rather than seeking to remedy past discrimination, Justice Powell wrote in Bakke's majority opinion that the goal of achieving a diverse college student body was a compelling enough reason to justify consideration of race as a factor in college admissions. But he added that race could not be the primary, detrminate factor in the selection process.

http://www.csmonitor.com/2003/0328/p01s01-usju.htm 3/31/2003