Race matters: this year, the Supreme Court could dismantle affirmative action. Would it be ending an unfair practice or hurting the cause of racial equality?

• Author: Nagourney, Eric

It took years of court orders, bloody demonstrations, and even armed federal marshals to desegregate American schools, lunch counters, and workplaces. That may be hard to imagine these days, when few in mainstream America would defend racial segregation, which prohibited black people from using the same facilities as whites.

But desegregating the United States and integrating it--that is, erasing the invisible barriers that make it hard for minorities and whites to have truly equal opportunities--are two different things.

In 1961, President John F. Kennedy issued an executive order with what historians cite as the first use of the phrase "affirmative action," by which he meant taking active steps to offer minorities opportunities to compensate for years of discrimination. Four decades later, the country remains deeply divided over how to achieve genuine racial equity, or even simple diversity. Indeed, a debate that once struck many as black and white is now murkier than ever.

A QUESTION OF DIVERSITY

Take the case of Barbara Grutter. In 1996, at age 43, Grutter decided to close her business and go to law school. A mother of two, Grutter sent an application to the University of Michigan law school, a top-ranked institution that says it is deeply committed to having a diverse student body.

"If you look at diversity in the general sense," she says, "then I was really a quintessential diversity candidate." This may come as a surprise to affirmative action proponents, who have long taken "diversity" to mean something involving members of minority groups like blacks and Hispanics--not white, middle class women.

Grutter, who was rejected by the law school, is now part of a group of unsuccessful white applicants challenging the university's use of racial preferences in admissions. The outcome could alter or end affirmative action programs in universities across the country. In December, the Supreme Court agreed to consider the case, along with another lawsuit challenging Michigan's undergraduate admissions program on the same grounds.

The Michigan case is considered the most important affirmative action litigation since the Bakke case 25 years ago. In that groundbreaking decision, the Court endorsed the goal of student diversity in higher education as a compelling governmental interest. But it also ruled that a quota setting aside a fixed number of positions for minority applicants violated the Constitution's guarantee of equal protection. (See "The Case That Made the Case," page 11.)

Last month, the Bush administration weighed in, joining the white plaintiffs in asking the Supreme Court to reject the university's policy of giving an edge to black and Hispanic applicants. More important, the case has reopened debate over the fundamental fairness of affirmative action--not just at universities, but throughout society.

RACE: A STICKY ISSUE

If affirmative action is basically an attempt to break down barriers that kept the best schools, jobs, and professions mostly off limits to minorities, then why is it so controversial? Maybe because the practice can involve anything from actively recruiting minority applicants (and often women) to setting aside a certain number of jobs just for minorities. With a limited number of opportunities available, giving one person a leg up means shutting out someone else. Add the volatile issue of race into the mix, and you have the makings of a wrenching controversy.

"Everybody wishes that race would somehow go away in American life," says Professor Marvin Lazerson, former dean of education at the University of Pennsylvania. "It turns out it is just not going away."

For many people, the justification for affirmative action is simple. "You do not take a person who for years has been hobbled by chains and liberate him, bring him up to the starting line of the race and then say, `You're free to compete with all the others,' "said Lyndon B. Johnson, who in 1965 became the first President to really push affirmative action.

What Johnson meant was that just outlawing overt discrimination--white and black sections on buses, for example, or hiring practices that kept out minorities--was not enough to bring about real change for people who lacked the skills to compete effectively. Trying to right these historical wrongs...