The Chronicle of Higher Education reports this morning that the American Civil Rights Institute and the Center for Equal Opportunity have notified “dozens of private and public colleges” that their programs that exclude some students based on race or ethnicity violate federal civil rights laws and that complaints may be filed with the Department of Education’s Office of Civil Rights. (Link requires subscription)
Under the same pressure, Princeton recently announced that it was eliminating such a program, and MIT agreed to end the race exclusivity of its programs.
The Office of Civil Rights has commented, quite sensibly, that, “[g]enerally, programs that use race or national origin as sole eligibility criteria are extremely difficult to defend.” The higher education establishment, however, resembling all too much Ala. governor George Wallace (“Segregation today! Segregation tomorrow! Segregation forever!”) standing in the schoolhouse door, is tenaciously holding on to racial preferences. Martin Michaelson, a well known Washington lawyer who advises colleges and universities on how to structure their preference programs,
says that it is difficult and unwise to make generalizations about the legality of race-exclusive programs. “There is considerable variation among them,” he said. “One wants to look at their particulars.”
Well, yes. Race-exclusive programs do indeed take many forms now, just as they did in the past when different races were being excluded. Now, as then, officials wedded to the practice of racial preference have thrown up a wide array of legal barriers to the enforcement of racial equality, ranging from massive resistance to micro-litigation regarding every contested policy and program. The response to Proposition 209 in California is instructive. As Roger Clegg and Glenn Custred have pointed out,
Jesse Jackson called on California officials to “defy, challenge, resist” the law. He bused in supporters and led an anti-209 march across the Golden Gate Bridge. The vice mayor of Oakland promised to “chip away” at the law until its effectiveness was negated. Across the bay, when San Francisco mayor Willie Brown was asked on local television whether he would obey the law, he answered flatly, “No.” In fact, the city expanded its municipal contracting preferences. A Los Angeles County affirmative action officer told USA Today, “I am very defiant when it comes to something that had no business being voted on.”
Connie Rice of the NAACP Legal Defense Fund disingenuously argued that the word “preference” in Proposition 209 is ambiguous, and vowed to litigate the issue. The U.S. Department of Education’s Office for Civil Rights began investigating a complaint filed by civil rights groups that California’s new colorblind admissions to state universities violated federal antidiscrimination laws. (“Defying Proposition 209,” THE WEEKLY STANDARD, 24 July 2000, p. 27)
Once again we’re even hearing complaints about what die-hard segregationists used to call “outside agitators.”
. . . Mary Jo Dively, Carnegie Mellon’s general counsel, said, “We believe that what we are doing is legal,” and the institution is likely to continue offering an academic-preparation camp for minority high-school students until the Office for Civil Rights or a court directs it to do otherwise.
“I certainly am not going to take the word of some outside group that presumes to tell Carnegie Mellon what to do,” Ms. Dively said.
Massive resistance … scorched-earth litigation over every program at every school … Senate filibusters … outside agitators…. I’m beginning to think these people are right when they talk about “turning back the clock.”
UPDATE [2/28/2003] – The Los Angeles Times picks up this story today. It quotes Edward Blum, legal director of the American Civil Rights Institute, saying their purpose if for universities “not to end these summer enrichment programs, or to end fellowships that are designed for disadvantaged students, but rather to open them up to individuals based on their need, their qualifications and their merit, as opposed to their skin color or ethnicity.”
“I certainly am not going to take the word of some outside group that presumes to tell Carnegie Mellon what to do,” Ms. Dively said.
If you substitute “Mississippi” for “Carnegie Mellon” and “Gov. Barnett” for “Ms. Dively”, this would be indistinguishable from an actual quotation from the early Sixties.
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