by M. Michael Sharlot
The Austin American-Statesman, Thursday, July 3, 2003
Reprinted with the author's permission
An otherwise good opinion piece on the U.S. Supreme Court's affirmative action rulings by my respected colleages Sandy Levinson and Jordan Steiker in last week's American-Statesman contained a troubling and what I believe to be an inaccurate assertion about Americans in 2003. They asserted the opinion in the Michigan case may help address the real problem: "entrenched American racism."
"Racism" is one of the ugliest terms in our language, and yet two distinguished academics use it to describe an entire nation. Only human beings, not nations, hold prejudices.
Who are these people with such entrenched racist views? The authors do not name or describe these immoral people. I know they are not racists nor, I am sure they would say, are their loved ones, other academics or the leaders of the military and corporations who submitted the friend of court briefs favoring the University of Michigan's use of affirmative action.
I can only guess that the authors are referring to the vast numbers of working-class Americans with whom academics are likely to have little or no contact. Yet, these are the people who have elected leaders who in turn enacted laws encouraging the enormous economic and educational progress made by minorities in the United States since the end of legal segregation.
Are these efforts to extend the benefits of our nation to people historically excluded from full enjoyment of these benefits evidence of "entrenched racism"? These are the people in whose name our country has absorbed tens of millions of immigrants of color. Is that unrivaled achievement an example of "entrenched racism"?
These are the people whose children and grandchildren, not those of highly paid and well-connected elite academics, are likely to pay the price of affirmative action. I have found it common in my lengthy experience in higher education that many academics eagerly assume the weighty task of critically evaluating their nation.
Almost inevitably, America falls short of an ideal standard that can be met only by angels. If racism is entrenched in America, how are we to describe France or Germany, which have no equivalent of a Colin Powell or Condoleezza Rice. Nor do they have members of minority groups heading major corporations, or achieving high military commands.
I was disappointed that there was no mention of the problem that is the immediate reason for the use of affirmative action: Members of some minority groups perform, on average, substantially lower on standardized examinations.
Selective schools continue to rely on such examinations. Hence, the necessity
to use affirmative action to achieve a diverse student body. I believe that
this disparity may be a legacy of past racism -- the economic, educational and
social disadvantages associated with being marginalized by the larger community.
I wish to stress my ardent belief in the need for diversity, which is especially
true for the law.
The legal system exists in order to protect persons, property and freedoms and thereby encourage all other endeavors. It depends to an enormous degree on the willingness of citizens to abide by its rules voluntarily.
If members of minority groups are to respect and obey the dictates of the law, it is vital that minorities perceive that they play a significant role in the administration of justice. I have worked toward this goal at the law school and with the American Bar Association.
I believe that our society has the task of determining the reasons for this disparity in performance and of seeking ways to minimize it and/or determine other accurate measures for access to higher education.
This will not be easy or inexpensive but it is crucial, and the Michigan decision
does not eliminate the need for this effort.
Nor will this effort be advanced by attaching the stigma of "entrenched
racism" to Americans who, on the contrary, have shown an exceptional willingness
and capacity to rise beyond the sins of our history.
M. Michael Sharlot is a professor of law and former dean of the School of Law at the University of Texas.