Two recent and conflicting federal-court rulings concerning racebased admission preferences at the University of Michigan and its law school highlight momentous legal questions that require unflinching yes-or-no answers. Does the 14th Amendment demand official neutrality in matters of race? Is Justice Lewis F. Powell Jr.'s lone opinion in Regents of the University of California v. Bakke (1978), the purported basis of diversity-based preference policies, still the law of the land?
Sooner or later, the U.S. Supreme Court will have to decide those questions—either in the Michigan cases or in one of the similar lawsuits pending against state universities in Georgia, Texas, and Washington.
Past decisions in civil-rights cases suggest that the Supreme Court, in its current composition, will be tempted to paper over both the legal and the real-world problems with a compromise. The happier news is that one of the seemingly stark legal choices, official colorblindness, could very well be that compromise formula. If that result comes to pass, we will owe it not only to the merry band of constitutional warriors at the Center for Individual Rights (my own previous employer and the plaintiffs’ counsel in the two Michigan cases and in the Texas and Washington lawsuits) but also, and somewhat ironically, to the education establishment’s tenacious defense of racial preferences that have outlived their usefulness.
A much-noted decision last month invalidated the University of Michigan Law School’s practice of enrolling a critical mass of minority students by means of admission preferences. Racial diversity, U.S. District Court Judge Bernard A. Friedman determined, is not a compelling government interest that would warrant race-based decisions. Moreover, even if it were, the law school’s racial preferences were not narrowly tailored to the diversity objective. For instance, the school had failed to explore race-neutral means of achieving the objective.
The decision and opinion in Grutter v. Bollinger directly contradict last December’s ruling by a different district judge, which sustained substantially more systematic racial-preference policies in Michigan’s undergraduate admissions. Both decisions have been appealed to the U.S. Court of Appeals for the Sixth Circuit, which is likely to consolidate them into a single case.
The average observer would guess that only one of the two district-court decisions can be right. That guess is correct. The stark constitutional choice, however, obscures a nuanced legal and political subtext.
Since the 1954 decision in Brown v. Board of Education, civil-rights law and policy have reflected a desire to reconcile a public commitment to constitutional colorblindness with efforts to promote the social advancement of black people. The nondiscrimination command of the 1964 Civil Rights Act implicitly assumed that those two commitments were convergent, if not entirely congruent.
Nondiscrimination, however, soon came to be viewed as insufficient to overcome massive political resistance and the legacy of racism and segregation. The neutrality norm was subordinated to the need for social promotion, under the heading of "affirmative action." That ambiguous term sparked a protracted, acrimonious fight over how far nominally "remedial" preferences could extend without undermining a credible pretense to nondiscrimination.
When segregation and the policy of "massive resistance" receded into the past—thus rendering ostensibly remedial deviations from the nondiscrimination norm increasingly questionable—Justice Powell’s 1978 Bakke opinion supplied a new compromise formula. In the interest of diversity, higher-education institutions could consider race as one "plus factor" among others, though not as a "decisive" factor or as a "quota." That less-than-translucent holding allowed college administrators to achieve a predetermined racial balance—that is, a quota—by administering a sufficiently large "plus factor." As far as higher-education institutions were concerned, the real holding of the Powell opinion was that quotas are ok, as long as colleges deny their existence.
That formula and modus operandi worked for almost two decades. They depended, however, on a public perception, and an official pretense, that racial preferences were relatively benign because they were limited—akin to the preferences colleges award to, say, oboe players or North Dakotans. In other words, the Bakke formula depended on secrecy about the true scope of racial preferences.
That formula ceased to be viable when Hopwood v. State of Texas—filed in 1992 and decided, in a pathbreaking opinion by the U.S. Court of Appeals for the Fifth Circuit, in 1996—produced public, incontrovertible evidence of "plus factors" that were quotas in all but name. Confronted with that evidence and the incoherence of the Powell opinion, the Hopwood appeals court ruled that "diversity" did not warrant any kind of racial preference or "plus factor."
Hopwood prompted an acrimonious debate because it threatened to force colleges, and the country, onto one of the horns of the perennial dilemma between nondiscrimination and the advancement of black people. Race-blind admissions, the education establishment shrilly proclaimed in court and in public, would mean lily-white elite institutions. Journalists (such as
The New Republic’s Jeffrey Rosen) and academics who should have known much better (such as the Harvard University sociologist Nathan Glazer) echoed that jeremiad.
The dire predictions have since proved vastly overblown. They were based almost entirely on a simple projection of the existing, test-score-based admission practices onto a race-neutral world. But of course, no law and no plaintiff compel higher-education institutions to rely exclusively on applicants’ test scores and grade-point averages.
College administrators have countless means of enrolling a critical mass of minority students under officially race-neutral laws—including the admission of the top 10 or 20 percent of students from every high school, an increased emphasis on non-numerical admission criteria, and an individualized file review that makes it impossible to trace racial discrimination. Texas—where black and Hispanic students accounted for the same percent of the entering class at the University of Texas at Austin in 1999 as they did before 1996—has learned to live with Hopwood. California has learned to live with Proposition 209, the 1996 referendum that prohibited racial preferences and discrimination in the state’s public institutions. The University of California just released data showing that its 4-percent plan increased the admission of underrepresented minority applicants by 17 percent during its first year of operation.
Why, then, does the education establishment continue to fight official colorblindness? Why is the University of Michigan spending a fortune on the defense of practices that look questionable even as described by The New York Times and 60 Minutes? Why is the University of Texas School of Law still pursuing appeals in the long-decided Hopwood case? The universities’ scorchedearth defense seems increasingly ideological, and divorced from the proffered real-world concerns.
It is true that race-neutral laws might produce a loss of a few minority students at several elite institutions, and that the recruitment of a suitably race-diverse student body will become somewhat more expensive and cumbersome for virtually all competitive institutions, especially large undergraduate institutions with many thousands of applicants. Guaranteed outcomes and administrative convenience, however, are not the point of constitutional norms, and even higher-education administrators have refrained from contending otherwise.
Similarly, some of the new measures to preserve diversity—such as the percentage plans—may produce incoming student classes with somewhat lower average test scores than would the allocation of a predetermined number of seats to the highest-scoring students within each racial group. That is a small price to pay, however, for an allegedly compelling interest in racial diversity. There is something absurd about the educracy’s contention that lower average test scores in the Harvard student body would destroy the institution’s elite status and character, whereas the admission of minority students with lower scores is essential to its functioning.
At any rate, college administrators worry about the standing and ranking of their institutions relative to comparable, competing institutions—not about a marginal downward shift in average test scores per se. The Texas law school explicitly—and unsuccessfully—urged the Fifth Circuit to revisit the Hopwood decision because it would be put at a competitive disadvantage if it were required to be colorblind, while rival schools outside the Fifth Circuit were not. That concern should fade, however, once all elite institutions are compelled to observe the same rules. (While private institutions are, of course, not subject to constitutional norms, Title VI of the Civil Rights Act subjects virtually all private institutions to the same nondiscrimination rules that apply to public institutions.)
Theoretically, some higher-education institutions could sacrifice racial diversity in order to achieve higher test-score averages and improve their competitiveness. But that opportunity also exists under current law, and no first-rate institution has made use of it. Harvard, Yale, or even the University of Chicago would not hire a janitor, let alone a provost or president, who might be suspected of contemplating any such move. Deviation from the diversity orthodoxy ends an educator’s career. That alone suffices to sustain a cartel of diversity-maximizing institutions.
"Do not give an inch" might be a plausible strategy for colleges that are defendants if a concession were to embolden litigants and judges to take the next, bigger step. No next step is possible, however, beyond compelling a public commitment to official colorblindness. The notion that the eradication of manifest racial preferences— and the acceptance of official colorblindness—might produce a wave of litigants and lawsuits to challenge more subtle, race-neutral diversity policies is absurd. Complex and hugely expensiveto begin with, reverse-discrimination lawsuits become positively forbidding when the preferences are difficult to detect and still more difficult to prove.
The only legal rule that would compel truly race-neutral admission policies is a "disparate impact" theory. Such a rule would impose on defendant universities an affirmative obligation to prove that the enrollment of an unexpectedly large contingent of minority students, relative to the qualified applicant pool—as measured by test scores and grade-point averages—was produced through nondiscriminatory means. No conservative academic, advocate, or agitator has proposed such a rule. Having campaigned for three decades for official colorblindness and against statistical measures of nondiscrimination, conservatives could not now advocate a "reverse" disparate-impact rule even if they were of a mind to do so. No court in the country, moreover, would seriously consider such a theory.
Put differently, race-neutral norms will not guarantee race-blind practices. In the 1960’s and 1970’s, that recognition, coupled with the desire to foster minority advancement, prompted the courts, the Congress, and federal civil-rights agencies to adopt statistical measures of nondiscrimination. Precisely because of the same consideration, the current is now running toward official colorblindness. The Supreme Court will accept deviations from that legal baseline if they are shown to be an absolute social necessity. It will not tolerate them as an ideological point or hobbyhorse.
An ideological point, however, is what colleges’ defense of race-based preferences has come down to. Educators know, and we know, and courts know, tha t racial diversity is achievable under race-neutral norms. Higher-education administrators, however, do not simply want to help black people. Their self-esteem and respect among peers depend on being seen to be doing something special and out of the ordinary for minority constituencies. That perception, in turn, depends on administering explicit racial preferences. But accommodating the educators’ perceived need would require the Supreme Court’s endorsement of a diversity regime of open-ended, permanent racial preferences. That, the court is not going to do. It will instead embrace the sensible compromise: neutrality in law, diversity in fact.
In a strange way, the restoration of official colorblindness as a constitutional norm has always depended on the education establishment’ s overreach and misplaced noblesse oblige. In the Hopwood case, the Texas law school obtained a district-court decision sustaining and, indeed, commending the institution’s use of racial preferences—albeit requiring a few policy changes that university officials themselves described as cosmetic. The university could have settled the case then and there by making those changes, admitting Cheryl Hopwood and her co-plaintiffs, and paying modest lawyers’ fees. Without even exploring that option, the university chose to fight—and bought itself a precedent on which the campaign against race-based preferences has rested ever since. More such strategic genius is required to push one of the pending cases into the Supreme Court.
The University of Michigan, for one, seems prepared to oblige. Its leaders and lawyers deserve support and gratitude—not for their cause, but for their obstinacy.
Michael S. Greve is the John G. Searle Scholar at AEI.