January 17, 2001

BY MIRANDA MASSIE

THE DEBATE over affirmative action has undergone a sea change. In a trial that began Tuesday in federal district court in Detroit in the affirmative action challenge against the University of Michigan Law School, Grutter v. Bollinger, student intervenors will give questions of racist inequality, bias and unfairness their proper emphasis. The pernicious and stultifying myth of race-neutral meritocracy will finally be dispelled.

Judge Bernard Friedman's late December order for a trial on these central issues follows a series of recent federal court opinions upholding affirmative action in higher education on the narrow basis that it helps to ensure diversity. The opinions, including one by Judge Patrick Duggan in the challenge to the university's undergraduate affirmative action policies, show that the tide is turning in the struggle to maintain and expand integration in higher education. Together with demonstrations on campuses and other expressions of a new civil rights movement dedicated to protecting the gains of the last one, they have sent a message that our society will not accept the resegregation of the very institutions designed to move us all forward.

But this critical advance is not enough -- and now the participation of student intervenors in the case gives us the chance for something more. The trial in the U-M Law School case will change the terms of the debate and will correct serious flaws in the approach of the recent decisions. We must put affirmative action on firmer, truer ground.

First, we must make clear that the goals of racial equality and integration have motivated affirmative action from its start. While the importance of racial diversity emphasized by the university's defense is indisputable, it is inseparable from those goals.

Second, we must dismantle a basic and erroneous assumption at the heart of the attack on affirmative action: that standardized test scores and grades capture qualification and merit, and that aggregate differences by race in such measures mean that black and other minority students are less qualified and capable than white students.

The eradication of this backward and baseless stigma of racial inferiority is what the Supreme Court intended to accomplish in Brown v. Board of Education. The Brown court saw that stigma and other forms of racial disadvantage stand between us and the open and democratic society of equals to which we aspire. It was both moved by the vision of that society and cognizant of its own institutional need to stand for what is best, not what is basest, in our common life and tradition. Integration was required for progress to occur.

Now we must take on the questions of race and racism anew. We are armed with decisive and copious sociological evidence of the bias and discrimination inherent in standardized test scores, grades and other measures of academic achievement. We are armed with the scientific knowledge that race is a product of society, not biology. We know as a matter of history that progress for all of us -- women, working-class people, lesbians and gay men, the disabled, the elderly and in the end the most privileged among us, too -- turns on progress toward racial equality. Such evidence is in the record of the U-M Law School case, and much of it will be presented at the trial.

The truth is a powerful weapon, and it is on our side in the defense of affirmative action. But the challenge we face is not one of logic or reason; it is rather a challenge of feeling and will.

Reflecting on the period since Brown was decided in 1954, one could easily lapse into pessimism; we have a long, long way to go. The challenge for all of us -- litigants, judges, news readers -- is to choose optimism, following the lead of a new generation of young people who are acting on their determination to fight for full equality. Members of the greater Detroit community should attend the trial and take part in this historic event. We have battled our way far forward, and can cover the remaining distance if we adhere to both the most stringent criticism and the deepest hope.

MIRANDA MASSIE is lead counsel for the intervening defendants in Grutter v. Bollinger. Write to her in care of the Free Press Editorial Page, 600 W. Fort St., Detroit, MI 48226.