quinta-feira, julho 02, 2009

45) O começo do fim da ação afirmativa nos EUA?

Esta é a questão depois da decisão da Suprema Corte relatada e comentada extensivamente neste post da Century Foundation.
Recomendo ler o post original, pois ele contem dezenas de links para todos os temas importantes abordados no texto do autor.
Esse debate é importante para o Brasil, pois no mesmo momento em que os EUA estão se afastando de políticas de cunho racial, o Brasil está ativamente promovendo políticas de cunho racialista que podem criar no Brasil uma situação, ou pelo menos uma mentalidade, de Apartheid oficial.

The Beginning of the End of Racial Affirmative Action?
by Richard Kahlenberg - Century Foundation
Taking Note, June 30, 2009

What is the larger meaning of yesterday’s U.S. Supreme Court decision striking down New Haven’s denial of promotions to white firefighters because few minority applicants performed well on a qualifying exam? In the short run, the ruling is likely to intensify scrutiny of Supreme Court nominee Sonia Sotomayor, whose Second Circuit court decision in the case supporting the city was overturned. But in the long run, the Supreme Court’s ruling has important implications that go beyond Sotomayor’s nomination – and even beyond employment discrimination law. Strictly speaking, Ricci v. DeStafano involved Title VII of the Civil Rights Act – which governs job discrimination – but the Court’s ruling adds to the clouds looming over the larger enterprise of affirmative action in higher education and elsewhere.

The Ricci case was a difficult one. On the one hand, it seems unfair that the white fire fighters who studied hard for the exam and did well saw the rules changed – and their hard work dismissed – because not enough minority firefighters did well. On the other hand, no one should want the top ranks of New Haven’s firefighters to be almost exclusively white; and the pencil and paper tests largely used to determine promotions didn’t seem like the best way to recognize leaders. (According to Justice Ruth Bader Ginsburg’s dissent, almost two-thirds of municipalities now use “assessment centers,” institutions that simulate real-world situations, in deciding on promotions.)

The conservative majority on the Court, led by Justice Anthony Kennedy, sided with white fire fighters in an opinion that must have sent chills up the spines not only of city officials but also college administrators. Frank Ricci – the lead plaintiff in the lawsuit – sounded an awful lot like Allan Bakke, Jennifer Gratz, and Barbara Grutter, the plaintiffs in previous “reverse discrimination” lawsuits against universities employing affirmative action. Justice Kennedy and the majority seemed moved by the fact that Ricci, who was dyslexic, studied 8-13 hours a day and purchased materials so he could “give it [his] best shot,” with the expectation that his race would not be held against him.

Nor is the dissent’s description of why New Haven was justified in the case likely to be reassuring to college administrators. Ricci and the other white fire fighters “who scored high on New Haven’s promotional exams understandably attract this Court’s sympathy,” Justice Ginsburg noted. But “other persons,” she writes, have not “received promotions in preference to them”; that is, the test results were thrown out for everyone, so all applicants, including Ricci, would have a chance to compete again. Colleges, by contrast, do precisely what Ginsburg noted that New Haven had not: provide race-based preferences to lower scoring minority candidates in admissions.

There are, of course, other differences between the employment and education contexts that cut in favor of university affirmative action policies. The Court has recognized, for example, the special importance of diversity in higher education in order to foster healthy discussions, something less relevant in firehouses.

But Justice Kennedy, the new swing vote on the Court, was skeptical that racial preferences were the only way to promote diversity when he dissented in the 2003 Grutter v. Bollinger case, upholding affirmative action at the University of Michigan Law School. And just two years ago, the newly constituted Supreme Court (with Justice Samuel Alito having replaced Justice Sandra Day O’Connor), ruled 5-4 against a race-conscious school integration plan at the K-12 level. The expected confirmation of Sonia Sotomayor shouldn’t change this alignment, since she replaces the liberal Justice David Souter.

The issue of affirmative action in higher education may come up in the Supreme Court as early as next year in the case of Fisher v. Texas. In that suit, now in federal district court, conservatives are challenging the University of Texas’s use of race in admissions, arguing that the system’s top 10% plan – under which the highest achieving 10% of students in all Texas high schools are automatically admitted – renders the use of race unnecessary. Fisher gives conservatives on the Supreme Court a chance to substantially undermine Grutter without technically overruling it.

The Supreme Court’s handling of its two big race cases this term – a challenge to the Voting Rights Act and the firefighters suit – should give pause to supporters of affirmative action. In both cases, the Court, always aware of its need to remain legitimate, appeared to track public opinion in its decisions. By an 8-1 vote, the Court decided not to strike down a key provision of the Voting Rights Act, a landmark in America’s civil rights pantheon, and a law which inspires little public opposition. Meanwhile, the Court had no trouble supporting white firefighters in Ricci, an outcome favored by 71% of the American public in a Quinnipiac poll. Public opinion on affirmative action falls closer to the New Haven case than the Voting Rights Act: Quinnipiac found that 55% of Americans would abolish race-based preferences entirely. (Public opposition will also matter in Arizona, where an anti-affirmative action question will be on the ballot in November 2010)

The good news here is that if the Supreme Court does significantly curtail the ability of universities and colleges to use racial preferences, it will put pressure on those institutions to come up with something better. Already, President Obama has articulated what future affirmative action programs might look like. Asked whether his own daughters deserve a preference in admissions, Obama famously answered that they did not, given their advantages in life, and that economically disadvantaged children of all races deserve a break.

In emphasizing economic class, Obama picked up an important theme articulated by Dr. Martin Luther King Jr. toward the end of his life: that compensatory treatment for slavery and segregation should benefit the disadvantaged of all races. When I’ve made this point elsewhere, some have bristled. For example, Thomas Sugrue, writing in the current issue of Democracy Journal, claims that I “distort” King by depicting him as a “‘colorblind’ opponent of affirmative action.” In fact, it is Sugrue who distorts, for as I have clearly documented here and here, King was a colorblind proponent of affirmative action and compensation based on economic status. Repeatedly, King called for a Bill of Rights for the Disadvantaged, not a Bill of Rights for Blacks. Sugrue and others who cling to an outdated form of racial preferences can’t wish away what King wrote, even if it doesn’t fit their personal politics.

Yesterday’s Supreme Court decision in the Ricci case was another nail in the coffin of race-based affirmative action preferences. It’s imperative that progressives who care deeply about racial and economic inequality focus on the hard work of devising alternative policies that will command more legal, political and moral appeal than current programs.

Posted by Richard Kahlenberg on June 30, 2009
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