Affirmative Action on Trial Again

In 1978, the University of Maryland began a painful odyssey of reform and self-criticism that leads it now to the center of a rending national debate over affirmative action.

To help redress its historic hostility toward African-American students, the university established a blacks-only scholarship program, naming it after the 18th-century black scientist and astronomer Benjamin Banneker.


Sixteen years later, the university finds itself defending the program in court and opposing the growing national antipathy toward race-based remedies for discrimination.

Congress and the president are preparing to eliminate or trim whatever programs are now in place. Republican presidential candidates are rushing to declare their opposition. States are preparing to vote on abolishing preferences.


It is a movement that seems driven politically by the fears of so-called "angry white males" whose votes are coveted by both major parties.

Those who would abolish affirmative action are inclined to suggest that America has wiped away the stains of slavery, racism, bigotry and sexism, according to Sherrilyn Ifill, an assistant professor at the University of Maryland Law School and an expert on election laws and affirmative action programs.

"It's very much in vogue now to disconnect the history of discrimination with the present condition. You must do that if you are going to make the argument that we are a colorblind society. If the connection isn't there between past and present, then we don't need the programs. It's a wonderful fantasy. It happens not to be true," Ms. Ifill said.

One need only recall the recent turmoil at Rutgers University, where the school's president, Francis Lawrence, suggested that black students lack the "genetic hereditary background" to perform well on standardized tests. President Lawrence later apologized for his remark, calling it the opposite of what he believes -- and others hurried to point out that he had compiled an admirable record of expanding access to higher education for minority groups.

Given the atmosphere of resentment and recrimination on all sides, the University of Maryland's response to its own history seems more remarkable -- or lamentable, depending on your point of view.

Allegations of racial discrimination have been met typically with resentment and defensiveness: Fire departments, labor unions, city governments, private businesses and school systems search for evidence of racial right-mindedness.

The University of Maryland offered its record as an example of why affirmative action efforts like the Banneker Scholarships are needed.

The results of its actions, ironically, may now be working against the university as it defends itself in court. Its enrollment and retention of black students puts it ahead of many other institutions of higher learning.


In the early 1980s, the Board of Regents began to examine pools of applicants for virtually any job opening with hope of finding a black candidate, according to Allan L. Schwait, a former chairman. In 1982, Dr. John A. Slaughter, a black electrical engineer, was hired away from the National Science Foundation, where he was the director, to run the university.

Dr. Slaughter was recruited by the late Clarence M. Mitchell Jr., then a member of the Regents. As the congressional lobbyist for the NAACP, Mr. Mitchell had been a key figure in passage of the landmark Civil Rights Act of 1964. He also was a true witness to Maryland's sorry record of segregation.

In the 1930s, to cite the most glaring example, the university's law school refused to admit Thurgood Marshall, the Baltimore native who went on to argue the most important civil rights cases of this century and to become the first black member of the U.S. Supreme Court.

Two years after he graduated from Howard Law School in Washington, Mr. Marshall successfully brought suit against the UM Law School on behalf of a black graduate of Amherst College, Donald G. Murray.

That battle solved Mr. Murray's immediate problem -- but left Maryland with a reputation as an unwelcoming place for black students.

The Banneker program was designed to recruit black students who were likely to remain at College Park until graduation, to build a base of supportive black alumni and to combat racial stereotypes. The university offered full scholarships to high-achieving black students who met certain academic standards.


The program appeared to be on course and prospering until 1990, when it was challenged by a Hispanic student who argued that his rights had been trampled: He was denied a Banneker grant, though he qualified for one in every way but race.

The plaintiff, Daniel J. Podberesky, is winning and the university's program is in jeopardy. A federal district court judge twice found the scholarships permissible under U.S. Supreme Court rulings, but an appeals court disagreed each time, finding an insufficient causal link between present conditions on the campus and past discrimination.

"High achievers, whether African-American or not, are not the group against which the university discriminated in the past," the court declared in its ruling last fall.

Ms. Ifill found that aspect of the ruling particularly curious: "If Thurgood Marshall wasn't admitted, we can assume that other black high achievers were also discriminated against. These admissions cases were brought by high achievers."

The irony is deeper: It was a federal court, 25 years ago, that ordered Maryland to find ways of making its student body more reflective of the state's population. Now the courts are saying the university overcorrected.

While the appeals judges saw no connection between history and present conditions, President William E. Kirwan did:


"The state's long history of discrimination in denying black citizens the right to attend its largest and academically most advanced institution has had an impact on the social and economic well-being of many of the parents, grandparents, teachers and guidance counselors of today's college-aged black student population," he said.

The court, though, was resolute:

"Mere knowledge of historical fact is not the kind of present effect that can justify a race-exclusive remedy. If it were otherwise, as long as there are people who have access to history books, there will be programs such as this one," it wrote.

The feelings of black Marylanders, low black enrollment, high black dropout rates, the poor image of College Park among black Marylanders, feelings of alienation on campus -- all were rejected as justifications for the scholarships.

"We feel the appeals court judges used the wrong standard of proof," says Evelyn O. Cannon, an assistant Maryland attorney general who is now preparing an appeal to the Supreme Court. "They upped the ante from 'strict scrutiny' to evidence that goes beyond a reasonable doubt. They essentially held that if there's anything discriminatory going on, it's a figment of the black students' imagination."

Set off against the demand for clear causal links between past discrimination and present conditions, Ms. Ifill finds the solicitude for white males undiscriminating -- even "paranoid."


"I have yet to see any documentation of damage to white males. All we have is amorphous anger. It's disturbing that we'd be setting national policies based on anger we sense in the air. There is absolutely no correlation with actual disadvantage," Ms. Ifill said.

"The data show that white males are at the top echelon of earning, position and everything. They constitute a minority of the work force, but they dominate the top positions in virtually every field."

The Banneker case demonstrates the increasing difficulty of finding remedial programs that pass the constitutional tests. One of Mr. Podberesky's lawyers, Paul D. Kamenar, legal director of the Washington Legal Defense Fund, believes it is unlikely that the courts will approve any such programs in the future.

On its face, he says, the university has consciously discriminated against any potential scholarship candidate who is not black.

"Their defense is that it's our duty to pay some sort of reparations for past wrongs committed by society," Mr. Kamenar said. "We have no problem with programs that benefit the disadvantaged, culturally or economically, programs that have nothing to do with skin color. But it seems pretty unreasonable to have a program such as Banneker that would award a scholarship to the black son of a doctor from Jamaica but not the white son of a coal miner from West Virginia."

A program that seeks to address past ills with race-conscious remedies "seems to make the university more race-conscious rather than more colorblind," he added.


U.S. District Judge J. Frederick Motz had a different view.

"The question," he wrote in a 1993 opinion, "is whether a public university, racially segregated by law for almost a century and actively resistant to integration for a least twenty years thereafter, may voluntarily seek to remedy the resulting problems of the present by spending 1 percent of its financial aid budget to provide scholarships to approximately 30 high-achieving African-American students."

The judge's statement of the case telegraphs his own view that such a program was justified. Though reversed on appeal, he ruled again that the university had every right, and perhaps a duty, to offer such a scholarship. In his second look at the program, Judge Motz addressed the view, offered by the appeals court, that the university had not made an adequate connection between present conditions and past discrimination.

"Our history contributes mightily to our prejudices," he said, "and it is at best naive and at worst disingenuous to suggest that a culture of bigotry inculcated over centuries can be erased by less than 20 years of ameliorative measures."

The Banneker case also seemed to show how sharply roles have been reversed: The federal courts, which once led in the civil rights struggle, now suggest the university has been too hard on itself.

Ms. Cannon found the result perplexing.


"We compiled as good a record of past discrimination as you'll get with the cooperation of a brave client. If you look at that record and say there's no current effect, I'm afraid you'll never meet the court's standard," Ms. Cannon said.

A hopeful sign may be found, however, at the bottom line. Affirmative action may actually be good for the profit margin. One scholar says investors are attracted to corporations with good records on affirmative action.

"Business leaders have figures that show a correlation between diverse workplaces and productivity. Many companies find that diverse teams appeared to achieve greater productivity," Ms. Ifill says.

And there is one other reason why the University of Maryland might be encouraged to proceed with its program and why white males may have to get used to their position, she says: By the JTC year 2000, only 15 percent of new American workers will be domestic, non-immigrant white males -- which means that employers will be obliged to diversify.

D8 C. Fraser Smith is a reporter for The Baltimore Sun.