With the Supreme Court set to take up the issue of affirmative action in university admissions for the first time in a quarter-century, the Anti-Defamation League appears to be the only major Jewish group to weigh in with a brief opposing the University of Michigan policies that are being challenged.
"What we want is society to be as colorblind as possible, and therefore to use [race] for good purposes we believe is as unconstitutional as using it for bad purposes, especially if there are other ways to achieve the goal of diversity," said the ADL's national director, Abraham Foxman. He said the ADL supports Texas's policy of guaranteeing the top 10% of each high school's graduating class admission to the state university of their choice to promote diversity in lieu of racial preferences.
The American Jewish Committee, which is opposed to quotas but supports other forms of affirmative action, plans to file a brief with the court in support of the University of Michigan's policies next month. The AJCommittee's general counsel, Jeffrey Sinensky, said that he did not believe the university's admissions system constitutes a constitutionally unacceptable quota.
Representatives of the National Council of Jewish Women and the Religious Action Center of Reform Judaism have told the Forward that their groups plan to sign on to briefs in support of the university's policies.
At issue in the pair of cases the Supreme Court will hear in April are the University of Michigan's undergraduate and law school admissions polices. The Michigan undergraduate admissions policy awards points to applicants for a variety of factors, including membership in certain minority groups. The law school considers race in admissions to achieve a "critical mass" of minority students. The plaintiffs in the cases are white applicants who contend that they were denied admission in favor of less-qualified members of minority groups.
On January 15, the same day the ADL formally announced its filing of a brief, President Bush declared his administration's decision to file a brief opposing the university's affirmative action policies in a nationally televised speech. He called the university's policies "a quota system that unfairly rewards or penalizes prospective students based solely on their race."
Supporters of affirmative action blasted Bush's remarks. In a statement, the chairman of the board of directors of the National Association for the Advancement of Colored People, Julian Bond, said: "As expected, President Bush has come down on the wrong side of the struggle over justice in higher education." Bond called affirmative action "the just spoils of a righteous war, won at great cost and intended to heal division and end centuries of discrimination."
In particular, supporters of affirmative action disputed the president's characterization of the university's affirmative action policies as a "quota system." The Supreme Court prohibited the use of racial quotas in university admissions in its 1978 decision in the landmark Bakke case. The decision, however, is generally understood as permitting the use of race as one factor among many in the interest of promoting a diverse student body.
Unlike the Bush administration's brief, the ADL's brief does not argue that Michigan's policies constitute a quota. However, the ADL brief states that the organization adheres "to the principle that school admissions programs must be race-neutral."
Nevertheless, despite the ADL's strong stance against racial preferences — except "to remedy specific discrimination" — its brief is cautious in its recommendations to the court. While it denounces the university's use of race as a "proxy" for diversity, it argues that it is "unnecessary to decide this case in a manner that would establish a 'bright-line' test for all university and professional school admissions systems."
The brief even states that while the "ADL endorses only race-neutral means to achieve diversity in higher education... this does not inevitably mean that all consciousness of race in admissions must always be unlawful. It is unrealistic to believe that university and professional school admissions officers will always be blind to the race of an applicant."
The American Jewish Congress said that it had planned to file a brief criticizing only the law school's admissions policy. But because of internal debates within the organization over how strongly to argue against the policy, said AJCongress's assistant executive director, Marc Stern, "there was simply not enough time left to write a brief" before last week's filing deadline for critics of the university's policies.
"This has always been a difficult issue for American Jewish Congress and the American Jewish community," Stern said.
The last time the Supreme Court took up the issue of affirmative action in university admissions, in the Bakke case, the three leading Jewish civil rights groups — AJCommittee, AJCongress and ADL — all signed on to briefs challenging the University of California at Davis's medical school's practice of setting aside admissions slots for minority applicants. The move heightened tensions with black groups that supported the policy.
In the 1970s, the controversies surrounding affirmative action tapped into deep-seated Jewish anxieties about the use of quotas in higher education as well as the direction of the civil rights movement. Since then, however, community observers say that Jewish anxieties about affirmative action have dissipated somewhat, in part because of the high court's repudiation of minority quotas and set-asides in Bakke.
While the ADL appears to be the only Jewish group to have filed a brief with the court opposing the University of Michigan's policies, last week the ultra-Orthodox Agudath Israel of America issued a statement endorsing Bush's remarks on the case.