From Michigan to Mosul:
Can U.S. Constitutional Affirmative Action Principles Inform the Way Group Identity Is Addressed In Iraq?

By NOAH LEAVITT

Wednesday, Apr. 23, 2003

Lately, two questions have dominated the news, one domestic, and one international. One asks how a democratic country tries to cope with becoming more diverse - focusing on the University of Michigan affirmative action cases that were recently the subject of oral argument before the Supreme Court. The other asks how a diverse country tries to cope with becoming more democratic - focusing on post-Saddam Iraq.

What has been not been discussed, however, is whether there is - or should be - any connection between the Bush Administration's approach to dealing with American diversity and its approach to dealing with Iraqi diversity.

In this column, I will argue that there is indeed a connection: The debate surrounding the Michigan cases presents a useful lens through which to consider ways of creating a more democratic and tolerant Iraq.

Admittedly, we cannot simply export American constitutional jurisprudence to the Middle East. However, promoting a version of affirmative action that takes group identity into consideration in order to promote a "compelling governmental interest" may in fact be the best way to encourage long-term stability in that part of the world.

The Michigan Affirmative Action Cases: Taking Identity Into Account

The Supreme Court is expected to rule on the Michigan affirmative action cases by July. When it does, its decision may reshape the way that America confronts the ongoing effects of our unfortunate history of racial discrimination and segregation.

The cases turn on whether race can be taken into account in order to promote diversity in higher education. Since the 1973 Bakke decision, it has been clear that the Constitution, as interpreted by the Court, permits racial classifications only if they survive "strict scrutiny" - that is, only if they both further a compelling governmental interest, and are narrowly tailored to serve that interest.

Does using affirmative action to promote a diverse student body satisfy this rigorous standard? Answering that question requires raising two others. For the purposes of this column, I will not address the merits of the questions, but simply raise them and note the Administration's view.

First, is the interest in promoting a diverse student body a compelling interest?

Although the Bush Administration has not taken a position on this issue before the Court, President Bush strongly supports diversity of all kinds, including racial diversity in higher education. Thus, it seems likely that under his approach, diversity should indeed be considered a compelling interest sufficient to satisfy "strict scrutiny."

Second, is taking race into account when admitting students a sufficiently narrowly tailored way to create a desirable diverse community of learners, as the University of Michigan and its law school have asserted?

This issue is where the President and the University clearly part ways. President Bush only wants to use race-neutral methods to achieve the desired diversity, preferring "cream-skimming" strategies such as those that admit a top percentage of high school students to their state flagship universities.

These approaches have significant ramifications when thinking about how to create stability and democracy in Iraq.

Iraq's Diversity and the Obstacles It will Raise

Iraq's population is composed of Arabs, Kurds and Turkomans, as well as numerous minority groups including Assyrians, Armenians, Chaldeans and others. The Arabs are divided among urban Sunnis and rural Shiites, who outnumber the Sunnis by nearly three to one. Historical political affiliations mirror this split, with Sunnis comprising the largest percentage of Saddam's Ba'athist party and Shiites comprising the largest group of his victims during the bloodbaths of the 1970s and 1980s.

This ethnic and regional diversity presents countless stumbling blocks to rebuilding Iraqi society. From an economic perspective, hostile ethnic groups (including competing Kurdish subgroups) in places like Kirkuk will jockey to control major oil facilities, creating economic instability.

More ominously, from a human rights perspective, groups persecuted under Saddam's Ba'athist Sunni reign may decide to exact revenge in violent ways. Some commentators fear massive rioting, and even "ethnic cleansing," based on group association. And in a move taken by some to confirm these fears, the Shiite boycott of the Administration-sponsored meetings last week signaled that ethnicity and tribal affiliation will be the likely source of political alliances for the near future.

Thus, to stabilize Iraq, the Administration is going to have to quickly and deliberately decide how it deals with this diverse and fractious population.

The Administration Seems to be Downplaying These Potential Problems

The Administration's early actions in Iraq appear consistent with their race-neutral approach to the affirmative action cases. For example, describing the first Nasiriya meeting, a spokesman for General Jay Garner said, "we're using the big-tent theory--we want to bring in as many people as possible, to get a broad spectrum of Iraqis together and see what we can do."

These comments indicate that the Administration is attempting to avoid taking group affiliation into account, focusing instead simply on who would be best at running the government. To draw a parallel to the President's "cream-skimming" approach, it is as if they are simply including the "top percentage" of all Iraqis regardless of their particular affiliations.

Yet, possibly as a result of this approach, problems are bubbling up from this diverse population. Many groups did not want to participate in the planning meetings because they did not think the United States understood all of the key factions. Other groups sent low-level delegates lacking decision-making authority, simply in order to scope out the other delegates, who were described as being "divided and distrustful."

Moreover, many Iraqis regarded the representatives as not truly representing significant sectors of the national population. The meetings ended without any tangible accomplishments, except that they had avoided any further bloodshed.

A Role for Affirmative Action? Why A "Big Tent" Approach May Be Mistaken

Iraqis strongly identify with their ethnic and tribal affiliations. In addition, there is a very real threat of group-on-group violence if groups do not feel their interests as groups have been taken into account.

In light of these realities, shouldn't America, as the interim governing power, respond by more consciously selecting and working with leaders who represent all of the country's major groups? Simply taking a generic "big tent" approach seems unlikely to be effective.

One widely-acknowledged security threat is that a post-Saddam Iraq could collapse into chaos. Accordingly, isn't there a "compelling governmental interest" in consciously reaching out to representatives from the various population groups, to solidify their involvement in the transitional ruling order so as to avoid factional violence?

The Bush Administration must recognize that such an interest in addressing the concerns and claims of the different population groups does exist - just as, in the domestic context, it seems to recognize that an interest in diversity exists. The question is how to serve that interest, and whether, and to what extent, group identity can and should be taken into account.

What Those Creating A New Iraqi Government Can Learn From Bakke

In his opinion in Bakke, Justice Powell observed that it is not too much to say that America's future depends on leaders trained through their wide exposure to the ideas and mores of students as diverse as this nation of many peoples.

Isn't the same lesson true for Iraq, only more so? Shouldn't the Bush Administration take race into account in a land where race is so consciously taken into account by the people themselves?

Fortunately, a recent New York Times story hinted that the Administration might take just such an approach. Specifically, it may begin identifying particular ethnic groups to participate in future meetings and then allowing those groups to choose their own representatives.

Doing so is wise. The Administration must continue to recognize and consciously respond to Iraq's diversity during this week's follow-up meetings. Indeed, this may be the only way to solidify the tremendous changes that have taken place and ensure that Iraq becomes a land of greater democracy and tolerance - making the President's goal of liberating Iraqis from a sordid recent history of discrimination, violence and bigotry a reality.

But while the Administration's tack is wise, it is also intensely ironic, for it is in sharp tension with its views on domestic affirmative action. In the Michigan cases, the Administration has argued that group identity should not play any role in addressing and promoting diversity. In Iraq, however, it seems to be abandoning that very argument, and recognizing that group identity must indeed be taken into account.

In the end, then, Michigan's arguments may ultimately prove victorious - if not in the U.S. Supreme Court, then possibly in Iraq's court of public opinion.


Noah Leavitt, an attorney, has practiced human rights law in numerous international and domestic settings. He can be contacted at nsleavitt@hotmail.com.

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