Christine M. Flowers: When the playing field is level, who'll still be climbing uphill?

Posted: October 12, 2012

IN 1982, DURING my senior year at Bryn Mawr, I applied to law school. Given that my recently deceased father had been a proud graduate of Temple, I naturally applied to his alma mater. To make a long story short, I didn't get in.

No tears, because I ended up at my first choice, Villanova. But to this day, something about Temple's application process bothers me. Back then, the school had a program called SPACE, which was designed to promote "diversity." Of course, race was one of the factors, if not the primary factor, used to measure "diversity." It may seem like sour grapes, given the rejection of my application, but I always thought that there was something indecent about a law school literally discriminating under "color of law."

I'm in good company. Justice Clarence Thomas, someone who is increasingly recognized as one of the most intelligent and iconoclastic members of the Supreme Court, has long railed against a system that gives a person points for the amount of melanin in his skin as opposed to the type of character within. Similarly, Rep. Allen West from Florida has criticized preferences to the extent that they tend to weaken the caliber of our national security and defense, things with which the retired lieutenant colonel is familiar.

If accomplished African-American men can recognize the drawbacks of affirmative action, it's clear that the era of reflexive race consciousness and hypersensitivity is over. At least, it should be.

That's why I'm glad that the Supreme Court has decided to revisit the whole issue of affirmative action this term. On Wednesday, the court heard arguments in Fisher v. University of Texas, a case that challenges the continued viability of race as a factor in university admissions. Nearly a decade ago, in Grutter v. Bollinger, a five-justice majority held that race could still be used as a factor in a "holistic" way - that is, when combined with other nonracial characteristics like musical skills or athletic prowess. The majority refused to completely invalidate the use of race because it had a blind spot about diversity, the kind that is contrived and not organic.

To opponents of any system that allows racial preferences, even if this means the tiniest thumb's pressure on the scales of justice, the Grutter decision was the antithesis of fairness or, as the lawyer types call it, equal protection of the laws. As Chief Justice Roberts wrote in an unrelated case several years later, "The best way to stop discriminating on the basis of race is to stop discriminating on the basis of race."

Of course, that's considered too simplistic for those who make a living telling us what a racist society we live in. There is a whole army of civil-rights warriors out there - Al Sharpton is one example - who seek diversity but secretly hope never to find enough of it, because if that happened they would become obsolete. People find bigots in the shadows, and when they can't point to flesh-and-blood specimens they make up arguments like "racism is Obama's main problem ... his support among whites should be much higher than it is [and that's] because he is not white." Don't laugh: this was an actual comment posted in response to one of my online articles.

I understand how, to some people, this might seem like a complex matter. In fact, even John Roberts was ridiculed by liberal pundits and academicians for refusing to consider the historic justification for affirmative action. But that's always the response: It was so bad for so long that we can't eliminate race-based decisions entirely, at least not until the playing field is leveled.

But why should the playing field be leveled on the backs of those who had no hand in creating the conditions of inequality during the darker part of our nation's history? And when do we stop assuming that a person's skin color is relevant? And is the incline of that playing field measured always and only by liberal standards that are elusive and increasingly difficult to satisfy, even after the election of an African-American president?

Thirty years ago, in apparent good faith, Temple Law School tried to level that playing field according to its own conception of fairness. But it was wrong then, and it's wrong now. Hopefully, the Supreme Court will agree.

Christine M. Flowers is a lawyer.


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