Christine M. Flowers: Revisiting affirmative action

Posted: February 24, 2012

IN THE SPRING of 1967, I received my first and only Western Union telegram. It was a momentous event for me, being as I was only 5. The message was, "Congratulations on your graduation day, honey. Love, Daddy." And it almost made up for the fact that he was missing my kindergarten commencement.

At the time, I had no idea why Dad wasn't going to be in the auditorium to cheer me on. I just knew that he was "down South" (wherever that was), doing important things for work. It was only years later that I learned the full story: Ted Flowers was in Mississippi registering African-Americans to vote during one of the most volatile periods of the civil-rights movement. And about the same time that I was standing on a stage at St. Mary's, he was risking his life for strangers.

That's not just the hyperbole of a proud daughter. Dad barely missed being beaten to death at a KKK roadblock in Copiah County, something that he revealed to my nine months' pregnant mother only upon his safe return to Philadelphia. Looking back, I'm awed by his courage.

I feel the same way about the civil-rights workers of the 1960s, many of whom didn't make it home safely, including three young men - two Jewish, one black - in Philadelphia, Miss. They fought against the most pernicious form of bigotry that exists: racism. You can change your religion, change your gender, even hide your sexual preference, but you can't do anything about the color of your skin. That's why I've understood that the law and society owed a special, higher debt to our African-American brothers and sisters. And that's also why I understand the principle behind affirmative action.

But, despite what some would say, times have changed. Sure, the bloody field on which the battle of human rights was waged is still not perfectly level. I'd be blinder than Lady Justice if I thought that blacks and whites had equal opportunity in this land of plenty. But it's a hell of a lot more level than when my father crossed the Mason-Dixon to do his part for justice.

That's why I'm glad that the Supreme Court has decided to take up the issue of affirmative action a decade after it last looked, and blinked. In Grutter v. Bollinger, the court attempted to cut the baby in half, and decreed that while quotas were illegal, universities could consider race as a factor in admissions. This basically meant that when you have two equal candidates, race is one of the factors that could tip the scales against one and in favor of the other. And of course, the racial benefit would always go to the minority. Sandra Day O'Connor was the swing vote who believed that affirmative action would be unnecessary in 25 years but who thought that the benefits of racial diversity in the classroom were justified by reverse discrimination. At least for another couple of decades.

Given the current composition of the court, it's unlikely that that sort of reasoning will prevail in 2012. This term, right in the thick of the election cycle, the Supremes will consider whether the University of Texas was justified in denying a place to a white student in order to make room for a less academically gifted minority. Because that's the central point here. If students are equally qualified at an academic level, the color of their skin makes no difference at all. It's only when you start putting your thumb on the scale to allow a minority to obtain a benefit, regardless of neutral factors such as grades and aptitude, that justice is offended.

You might say that minorities are still at a disadvantage in the 21st century because a large majority of them grow up in depressed and underprivileged areas. The grandchildren of my father's clients are disproportionately represented in urban areas where crime and drug use is a generational scourge, no question.

But instead of looking at the race or ethnicity of an individual to determine admission, maybe we should look at more objective factors, like income. After all, why should a middle-class black student from Wynnefield benefit from a law that penalizes a poor white kid from Bridesburg?

As Chief Justice John Roberts wrote in another case, "The way to stop discriminating on the basis of race is to stop discriminating on the basis of race." That may sound too simplistic to those who have a vested interest in keeping affirmative action alive. But to those who, like my father, risked their lives for a more perfect society, justice isn't complicated.

Christine M. Flowers is a lawyer. Email

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