Ad-In/Ad-Out: deciding victory and defeat in affirmative action legal contestations.

• Author: Johnson, Paula C.

At this point, I wish to express my thanks to all of you for persevering this afternoon. I truly appreciate those of you who have been at this event for the duration. It has been a very rich day, and I hope that our panel will continue in that vein. Before I begin my discussion, I would also like to echo this gratitude to the law review folks who invited us here. It really has been an insightful day, and I want to thank you all for affording me the opportunity to complement this already stimulating panel exchange.

For those of you who were here earlier, you know that we had a little bit of a discussion about sports, and the title of my discussion evokes that. My discussion--Ad-In/Ad-Out: Deciding Victory and Defeat in Affirmative Action Legal Contestations--is an amalgam of sports and legal terminology and concepts, and as an avid tennis fan, I have found much to admire in Venus and Serena Williams in the tennis world. (1) The Williams sisters are not the first African Americans to excel on the tennis court, but they are among the very few to reach such echelons. (2) Their rise to the top of their largely elitist, expensive, and exclusive sport is unparalleled in many respects. (3) Although Venus and Serena Williams are not typically considered an affirmative action success stow, several aspects of their experience underscore important considerations at the heart of the legal and social debate surrounding affirmative action policy.

It is important to recognize that the Williams sisters have become the standard bearers in a field in which African Americans previously were excluded on the basis of race and economic disadvantage. Early indications hardly suggested their success, despite showing early promise at the sport. For example, as one writer compared the experiences of the Williams' and Pete Sampras:

Sampras, arguably the best player to ever pick up a racquet, grew up in Rancho Palos Verdes--the top of the hill, literally and figuratively, a community rich in tennis culture and tennis stars.

The early years for Wimbledon winner Venus and last year's U.S. Open winner Serena, were at the bottom, on mean streets where gang warfare was an inescapable part of the landscape, where gunshots were often the background noise of the night. (4)

Furthermore, the economic disparities between the two communities are virtually unchanged as the Los Angeles Times so suggested. While Pete Sampras' area in Rancho Palos Verdes--the "top of the hill"--has been "filling up with mansions" and enjoying a significant increase in the median family income during the last ten years from $78,000 to $138,000, the situation in Compton has been much different. (5) Compton--also referred to as the "bottom of the hill"--has witnessed only a slight family income upsurge from $26,000 to roughly $30,000 for the same time period. (6) This still holds true even in the face of an economic resurgence and considerable crime-rate decrease since the early 1990s. (7)

The Williams sisters persevered despite such disparities. With confidence, experience, and determination, they overcame racial hostility and early deficits in their tennis acumen--what might be considered standardized measures of tennis orthodoxy--and surpassed their competition. For the Williams sisters, the relevant experience to advance in their chosen field was to play more tennis tournaments and to continue to study the intricacies of the game. Upon doing so, both women's physical, mental, and emotional abilities steadily improved and their tournament victories increased.

Thus, in many respects, the Williams sisters' achievement demonstrates the realization of success for those having identifiable promise, including promise that is evinced beyond standardized measures of skills and experience. In addition, in light of the continuing dearth of African Americans in the junior and adult tennis ranks, the Williams sisters' experience further represents the persistent need for racial and economic opportunity, parity, and inclusion in all areas of American life. (8)

As a proponent of affirmative action in higher education, I find value in the Williams sisters' analogy. I also find, however, key differences abound between the issues, perceptions, and legal determinations regarding affirmative action in the context of higher education. Yet, as courts and legislatures have addressed these matters, it has often resembled an unending tennis match with volleys back and forth across the legal and ideological net generated by our nation's court system and its inconsistent and unpredictable decision making. Thus, at various times, the status of affirmative action has represented an "ad-in" or an "ad-out" (9) situation for proponents and opponents of this important and necessary policy, as well as for the general society that benefits from the implementation of affirmative action programs in higher education as each side seeks a decisive win.

The recent spate of affirmative action lawsuits in undergraduate and law school admissions cases illustrates the confusion generated by this thrust and parry perhaps more acutely than any other time. Most recently, in Grutter v. Bollinger, the Sixth Circuit upheld the University of Michigan Law School's admission policy. (10) In its five-to-four ruling, the sharply divided court determined that race was a permissible consideration in the law school's admissions policy to ensure the legal and educational opportunity for members of underrepresented groups and to attain a diverse student body in the fulfillment of the law school's educational mission. (11) In light of the Grutter decision, it now seems likely that the U.S. Supreme Court will settle the conflicts in the lower courts between the affirmative action doctrine and policy in the educational setting. When the Court decides this matter, it must look for guidance from Regents of the University of California v. Bakke. (12) While the Bakke decision was produced by a sharply fractured court, I believe that the current Supreme Court will adhere to its precedential value in affirming the constitutionality and sound public policy of affirmative action.

Even with the conservative majority on the current court, it remains the same pragmatic institution that adheres to precedent. (13) While I deem this to be the case, I am not sanguine about what it may mean for the Supreme Court to uphold affirmative action when it decides the issue. Ordinarily, victory of any sort is welcome. I am concerned, however, that the Supreme Court's next opinion will render a decision so narrow in some respects, and so shallow in others, as to eviscerate the effectiveness and societal value of affirmative action programs. Such a decision must be forestalled. Therefore, a fuller explication regarding why affirmative action remains sound as constitutional theory, practical reality, and social necessity, is required.

In the first part of this discussion, I provide historical and contemporary bases for affirmative action in U.S. society. In the second part, I supply a brief overview of judicial decision making in the recent cases. In the third part, I examine ways in which the law and policy of affirmative action may be perceived as victory or defeat. Ultimately, I conclude that the Supreme Court should take the opportunity to reaffirm the legal basis for affirmative action in the strongest terms.

Thus, anticipating that the Court will uphold the University of Michigan Law School's admissions policies and reaffirm Bakke, I further argue that the Supreme Court should approach this impending decision with the same momentousness that accompanied the Warren Court's decision in Brown v. Board of Education. (14) In Brown I, Chief Justice Warren forged a consensus among the Justices in order to deliver a unanimous decision to the nation that declared the doctrine of '"separate but equal"' as patently unconstitutional. (15) The Court recognized the corrosiveness of racism that permeated American society and deprived African Americans of equal educational opportunity. (16)

In its opinion in Brown II, however, the...