Addressing both the history of affirmative action and the possible effects of more recent court cases, Professor Anita Hill (HS) gave a speech on April 30 titled "Promise of the Equal Protection Clause: From Plessy to the Michigan Affirmative Action Cases." Affirmative action in higher education is currently at stake in Grutter v. Bollinger, et. al., a case in which the University of Michigan is defending its use of race as a factor in the admissions process.Judith Sizer, Brandeis' general counsel, opened the event by introducing Hill to the audience. Mentioning that Brandeis signed an amicus brief in support of Michigan's policies along with 37 other universities, Sizer said that the brief stated "race should be considered as one factor among many in making admissions decisions." She further stated that Brandeis believes "diversity is a very important educational value."

Following Sizer's introduction, Hill began her talk by asking the audience what words they associate with affirmative action. Responses included, "quotas," "preferences," "favoritism," "unfair" and "opportunity." Hill said she asked this question to make the point that "we don't have any real definition of what affirmative action is."

Hill then moved on to a review of the history of Supreme Court cases dealing with race in the United States. Beginning with Plessy v. Ferguson (1896), Hill outlined the majority ruling's decision which held that "separate but equal" facilities for different races were constitutional under the equal protection clause of the 14th Amendment.

The Michigan case also deals with the 14th Amendment's equal protection clause. According to Hill, the main issue at stake is which competing vision of the 14th Amendment - colorblindness or color-consciousness in the name of diversity - will prevail.

The Supreme Court first visited the issue of affirmative action in higher education in the context of a 1978 case, Regents of the University of California v. Bakke. In a 5-to-4 decision, the court then held that race could be considered, in some circumstances, as a factor in the admissions process in higher education and that diversity is a legitimate state goal in university admissions decisions.

The case, however, was a close decision. Hill said four justices felt colorblindness was the goal while four others said affirmative action should be used as a remedy for past discrimination; according to Hill, the ninth judge took a moderate view. Rather than either system, she said America uses a system of "diversity affirmative action."

"Some people say that affirmative action is no longer necessary," she said. Hill then listed statistics comparing 1978, when the Bakke case was decided, with today's climate. She said the disparity in infant mortality rates and life expectancy between blacks and whites has actually increased in the past 25 years, and the poverty and unemployment rate disparities remain the same.

"As a remedy, (affirmative action) has failed," she said. But she then reminded the audience that the Supreme Court never approved the system as a remedy in the Bakke decision, adding that affirmative action has had a positive effect on diversity. "Does that mean that we abandon it, because it didn't perform the job it was never intended to do?" she asked.

According to Hill, Americans must look beyond the Supreme Court to promote equality. She said the United States needs a more comprehensive policy aimed at lessening racial and economic disparities rather than its current system of affirmative action. She added that voters should ensure politicians focus on issues of racial inequality. "We have allowed too many elected officials a pass on race," she said.

As for the Michigan cases, Hill said she predicts the decision will fall somewhere between the competing goals of colorblindness and diversity. She added, however, that citizen participation in the debate is important and can have an effect on the Supreme Court's decision. "There is a collective benefit to diversity," she said. "We have to start thinking about expanding opportunities.