In approving racial preferences in admissions at the University of Michigan Law School in Grutter v. Bollinger, Justice Sandra Day O’Connor’s opinion for the Court tacitly endorsed an essentially permanent regime of racial balancing through preferences while purporting to ban both racial balancing and permanent preferences. At the same time, in striking down the all-too-transparent point system used to award racial preferences by the university’s undergraduate school, in Gratz v. Bollinger, the justices signaled that concealment of the nature and magnitude of racial preferences–which has long been indispensable to their political sustainability–will henceforth be the way for selective universities to insulate them from legal challenge as well.
Taken together, the decisions reflect the majority’s evident desire to perpetuate the racial-preference regime long used by almost all major establishment institutions while using obfuscation to insulate it from the overwhelming popular disapproval that candor would have provoked.i
I. Grutter’s impact: a racial spoils system forever?
In Grutter, Justice O’Connor, who had never before voted to uphold a system of racial preferences, quoted a 1977 article asserting that "[i]t would be a sad day indeed, were America to become a quota-ridden society, with each identifiable minority assigned proportional representation in every desirable walk of life." But now she has done more than anyone alive to entrench just such a pervasive racial spoils system. In doing so, she and her four more liberal colleagues have cast aside, perhaps forever, the Rev. Martin Luther King’s dream of an America in which people are judged "not by the color of their skin but by the content of their character."
Justice O’Connor’s majority opinion in Grutter and concurrence in Gratz are the law of the land because she was the only member of the Grutter majority who also joined Chief Justice William H. Rehnquist’s far less important opinion in Gratz. (Justice Stephen G. Breyer joined O’Connor’s opinions in both cases, but not Rehnquist’s opinion in Gratz.)
A. The claim that racial academic gaps were shrinking was deceptive.
Justice O’Connor struggled mightily to reconcile the seeming permanence of the diversity-based preferences that she upheld in Grutter with her own (and the Court’s) longstanding position that "enshrining a permanent justification for racial preferences would offend" equal protection, as she put it in Grutter. She resolved this struggle by taking refuge in a statement remarkable both for its mutable notion of equal protection and its willful blindness to inconvenient facts: "We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today."
What basis was there for this expectation? O’Connor offered only the profoundly misleading assertion that during the 25 years since Bakke, "the number of minority applicants with high grades and test scores has indeed increased." The only documentation she cited was the law school’s speculative assertion at oral argument that more blacks could win admission on their academic merits now than in 1964. Whether this was self-deception or just plain deception, the Grutter majority must have been aware of the overwhelming evidence that the racial academic gap is both enormous and growing.
The average black high school senior has weaker reading skills and has learned less about math, U.S. history, and geography than the average white or Asian 8th grader, according to the scores on National Assessment of Educational Progress (NAEP) tests of a representative national sample of 17-year-olds. (Hispanics do a little better than blacks.)ii Careful studies show appalling deficiencies in the academic performance even of upper-middle-class black kids in top-notch, integrated schools.iii The results are especially dramatic at the top of the academic curve: In 2003, after 30 years of racial preferences, only 72 blacks nationwide scored above 1500 on the SAT. That comes to just over one-half of one percent of the total of 13,897 students with scores above 1500.iv
The justices ignored overwhelming evidence that this gap has been growing for the past 15 years, reversing the trend of the 1970’s and most of the 1980’s. For example, in 1978 the average black math NAEP score was at the same level as the 13th percentile of all white scores, meaning that 87 percent of whites had higher scores. By 1990, the average black score had moved up to the 24th percentile of white scores. But then it fell back just as dramatically, down to the 14th percentile of white scores, by 1999.v Similarly, the black-white SAT gap has grown from 189 points in 1988 to 206 in 2002 (a perfect score is 1,600), with "no compelling evidence that any improvement is in the offing."vi Do the tests discriminate against blacks? The opposite is true. "The average rank in class for black students is appreciably lower than the average rank in class for white students within each SAT interval. . . . Black students with the same SAT scores as whites tend to earn lower grades," and cluster toward the bottom of their classes academically.vii
If this trend continues, the number of African-Americans capable of winning admission to selective schools on their academic merits may be even smaller 25 years hence than it is now. The persistence of this large racial gap is among the reasons (others are detailed below) why the racial-preference regime approved in Grutter seems destined to become a permanent and ever more pervasive organizing principle of American society.
B. The disconnect between popular and elite opinion.
It might seem unlikely at first blush that racial preferences could long survive politically given the electorate’s overwhelming disapproval. While many in the news media portrayed Justice O’Connor’s opinion in Grutter as reflecting a broad national consensus—for example, in a front-page headline in The Washington Post, "Court Mirrors Public Opinion"–this was nonsense. Dozens of surveys show that more than two-thirds of Americans–and strong majorities of African-Americans in many polls–have consistently opposed racial preferences like those upheld in Grutter. Polls show much greater support for "affirmative action," but only because the phrase is ambiguous and misleading, as discussed below. What O’Connor’s opinion mirrored was the views of most leaders of the political, professional, academic, corporate, military, and journalistic establishment. She also adopted—indeed, mandated–their practice of keeping the general public in the dark about the nature and magnitude of the preferences that they use and support.
On no other issue have elected officials and establishment leaders implemented so pervasively a policy rejected so overwhelmingly by the general public. The 83 amicus briefs supporting Michigan’s preferences in Grutter and Gratz were joined by a stunningly broad array of establishment institutions and figures. As detailed by Professor Neal Devins in "Explaining Grutter v.Bollinger," in the [publication and date TK], they included 124 House members and 13 senators (with no member of Congress on a brief opposing preferences); 23 states and the Virgin Islands (with only Florida opposing preferences); an overwhelming majority of big business, labor, and civil rights groups; 91 colleges and universities (with none supporting the other side); every major educational association; and a group of former high-ranking officers and civilian leaders of the military.
What explains this stark disconnect between establishment leaders and ordinary Americans? Perhaps the leaders better understand the utility of preferences in keeping the racial peace, especially in the military, where resentment by the disproportionately black enlisted men of the overwhelmingly white officer corps became a major problem during and after the Vietnam War. But the personal self-interest of establishment leaders may be the more important explanation.
"Because academic credentials are significantly correlated with parental income, social status, and education," as Judge Danny J. Boggs wrote in dissent from the Sixth Circuit’s May 2002 decision upholding the law school’s preferences, "the malign effects of discriminatory policies like the law school’s will rarely fall upon the children of the educators who craft them or the judges who rule upon them." Or, he might have added, the leaders of other establishment institutions. Not only do whites and Asians who have reached leadership positions have little to lose from racial preferences, they have much to gain. "They scramble to show deference to minorities because only deference erects the firewall that protects them from stigmatization as racist," in the words of Shelby Steele.viii Meanwhile, virtually all black and Hispanic leaders benefit even more directly from racial preferences, which help them win contracts, coveted positions in establishment instittions, and racially gerrymandered election districts, while helping their children win admission to selective colleges. And all of the proposed strategies for pursuing diversity without racial preferences would improve the chances of working class black and Hispanic kids (among others) at the expense of black and Hispanic leaders’ children, who now reap the vast majority of racial preferences. Polls show far less support for preferences among low-income blacks, who get nothing from them.
Why is the Supreme Court so much more responsive to establishment than to popular opinion? The justices are themselves leaders of the establishment, of course. They come from prestigious universities and go to glittering dinner parties. Their closest professional collaborators are their extremely bright young law clerks, recent graduates of elite law schools where diversity is almost religious dogma and the views of ordinary Americans, conservatives, and even centrists are widely scorned. The justices’ reputations are shaped mainly by liberal-leaning mainstream news media, law professors, lawyers’ groups such as the American Bar Association, women’s groups (which often honor first-woman-Justice O’Connor), and other civil rights groups. They know that opposing racial preferences will get them caricatured as intolerant zealots and supporting preferences will win them praise for enlightenment. In addition, the only justice whose vote was in much doubt—O’Connor–surely knew that a vote to strike down the preferences in Grutter as well as Gratz would have been so widely denounced, distorted, and evaded by establishment leaders and the media as to harm both the Court’s stature and her own reputation.
C. Why preferences are probably here to stay despite their unpopularity.
The question still remains: How can such heavy racial preferences survive politically when the vast majority of Americans oppose them? The most obvious reason is that while the issue is of peripheral concern to most people–less than 20 percent of white voters tell pollsters it would play a significant role in determining their votes in presidential elections—it is the one great passion of powerful special interest groups. These include not only black and Hispanic leaders, liberal activists, their media allies, and universities but also big companies that see preferences as an inoculation against discrimination suits, boycotts, and bad publicity.
The pro-preference forces appear likely to gain political strength for the foreseeable future because Hispanic immigrants and their children are becoming an ever-larger percentage of the electorate. Hispanics whose ancestors never experienced racial discrimination in this country (as well as many whose ancestors did) are reaping an ever-larger share of the racial preferences originally devised as a temporary remedy for descendants of slaves.
But since lopsided majorities even of black and Hispanic voters oppose racial preferences in some major polls–as do even more lopsided majorities of white and Asian voters–deception about the actual operation of such "affirmative action" programs is probably indispensable to their political sustainability. Indeed, the phrase "affirmative action" is itself misleading, although it has such wide currency that even most opponents (unwisely) use it as synonymous with racial preferences. Polls show overwhelming support among black people and substantial support among whites for "affirmative action" despite the overwhelming unpopularity of racial preferences. The most plausible explanation is that many Americans interpret "affirmative action" as including politically popular programs supported even by opponents of racial preferences, such as aggressive enforcement of anti-discrimination laws, recruitment and outreach efforts to promote equality of opportunity, and preferences for promising working-class and disadvantaged students of all races. Such efforts are consistent with the original meaning of "affirmative action."
The mass media routinely obscure the workings of "affirmative action," typically by downplaying or omitting the fact that these programs systematically discriminate against whites and Asians in academic competition against less qualified blacks and Hispanics. A lot of people have been fooled. A June 2003 Gallup Poll, for example, asked: "If two equally qualified students, one white and one black, applied to a major U.S. college or university, who do you think would have the better chance of being accepted to the college–the white student, the black student, or would they have the same chance?" The correct answer would be the black student, and every university official and journalist knows it. But respondents were almost evenly divided, choosing "black student" by only 31 to 29 percent. And Black and Hispanic respondents incorrectly chose "white student" by 67 to 5 percent and 44 to 14 percent, respectively, demonstrating a stunning detachment from the reality that, in Steele’s words: "Today a wealthy [or unwealthy] black will be preferred over the son of a white mailman at all of America’s best universities."ix
The success of racial-preference advocates in entrenching a system that offends the values of the vast majority of Americans is illustrated by the increasing reluctance even of conservative Republican politicians to oppose preferences. President Bush’s remarkable 180-degree turn to a pro-preference position is a case in point.
While Bush has usually sought refuge in ambiguity, he went on record advocating completely race-blind admissions when he was Governor of Texas and said during the 2000 campaign that he "opposes . . . racial preferences." But in January 2003, Bush–and his Administration’s legal brief–sought to straddle the issue by coming very close to calling racial diversity a compelling interest, while opposing the preferential regimes in Grutter as well as Gratz chiefly on the ground that racial diversity could be maintained without preferences. Bush’s equivocal position was a signal to the justices that even a conservative Republican president had found it politically necessary to jump onto the racial diversity bandwagon. Next Bush completed his 180 by tacitly jumping on the racial preference bandwagon too. "I applaud the Supreme Court for recognizing the value of diversity on our nation’s campuses," Bush said within hours of the Grutter decision, sounding as though he had won a great victory. There was no hint of disapproval of the racial preferences that the justices had embraced, and that he had previously opposed.
II. Justice O’Connor’s opinions: hiding the ball as constitutional imperative
While candid and intellectually respectable arguments can be made for a permanent regime of racial preferences, Justice O’Connor’s analysis was neither candid nor intellectually coherent. She wished away the growing racial gap in achievement and made other misleading assertions of fact. She wallowed in logical confusion and internal contradictions. These flaws, together with her mandate for universities to conceal the nature and magnitude of their preferences, illustrate the integral role of obfuscation and deception in sustaining the brand of affirmative action that Grutter approved.
A. The preferences the Court upheld were heavier than those it struck down. This striking fact went unmentioned in the nine justices’ 13 separate opinions in the two cases and in most commentaries. But it is well documented in the record, highly revealing, and inconsistent with Justice O’Connor’s boilerplate assertion that "[t]o be narrowly tailored, a race-conscious admissions program must not ‘unduly burden individuals who are not members of the favored racial and ethnic groups.’ " That assertion suggests that the focus of the narrow-tailoring inquiry in this zero sum game–which excludes one equally or better qualified Asian or white applicant for every black or Hispanic admitted by virtue of racial preferences–should be the number of whites and Asians excluded. And that is a function of the magnitude of the preferences.
To appreciate the extreme magnitude of the preferences that Grutter upheld, let’s start with those that Gratz struck down. The weight given to race by Michigan’s undergraduate school appears to have been fairly typical of selective universities, but unusually easy to measure because Michigan was forced to make public the 150-point "selection index" it used to rank applicants. The now-defunct selection index awarded 12 points for a perfect 1,600 SAT score, only 2 points more than it awarded for a mediocre 1,010; 20 points for each grade point average unit (i.e., the difference between 3.0 and 4.0); and 20 points for being black, Hispanic, or Native American. So at the college, a preferred-minority applicant with a B (3.0) average would have had the same score on the selection index as an otherwise indistinguishable Asian or white with an A (4.0) average. The effect was identical to that of a system penalizing whites and Asians by having their A’s counted as B’s, their A minuses as B minuses, and so forth.
At the law school, "race is worth over one full grade point of college average" (emphasis added), according to Judge Boggs’s dissent. Preferred-minority applicants "with a high C to low B undergraduate average are admitted at the same rate as [white and Asian] applicants with an A average with roughly the same LSAT scores," he added. The Sixth Circuit majority did not dispute this. The law school sought to change the subject by arguing that racial disparities in GPA’s and LSAT scores prove nothing because it also considers "soft" variables, such as the enthusiasm of recommenders and the quality of the applicant’s essay, undergraduate school and curriculum. But that would diminish the force of Boggs’s analysis only on the assumption–which the law school disavowed–that preferred minorities do much better on these soft variables than Asians and whites.
The use of somewhat heavier racial preferences at the law school may reflect the facts that the percentage of well qualified applicants who are black, Hispanic and Native American declines as the selectivity of the school increases. Indeed, more than 70 percent of the black, Hispanic and Native American students admitted in 2000 (for example) would have been rejected by a race-blind process, an expert witness for the law school testified. In any event, the result at the law school has been to give what Sixth Circuit Judge Ronald Lee Gilman, in another dissent, called such "grossly disproportionate weight to race and ethnicity" as to amount to a "two-track system that is functionally equivalent to a quota" and that unconstitutionally "applies one standard for minorities and another for all other students." This from a Clinton appointee who also said that the more modest preferences contemplated by Powell in Bakke would be "clearly constitutional."
This is the system that O’Connor approved in Grutter as a model for using racial preferences without risk. How can it make sense to strike down one racial preference while upholding an even heavier one? O’Connor did not address the question, or even acknowledge it. But the answer is clear enough. While the law school uses an even more extreme double standard, it is also more opaque and wrapped in layers of obfuscation. The new constitutional imperative is to hide the ball.
This point was obvious not only to the four dissenters in Grutter but also to Justices David H. Souter and Ruth Bader Ginsburg, who joined O’Connor’s opinion in Grutter but broke with her in Gratz. "The college simply does by a numbered scale what the law school accomplishes in its ‘holistic review,’ " Souter wrote in his dissent in Gratz. "If honesty is the best policy, surely Michigan’s accurately described, fully disclosed College affirmative action program is preferable to achieving similar numbers through winks, nods, and disguises," Ginsburg wrote in another dissent.
(In fact it was n…
In approving racial preferences in admissions at the University of Michigan Law School in Grutter v. Bollinger, Justice Sandra Day O’Connor’s opinion for the Court tacitly endorsed an essentially permanent regime of racial balancing through preferences while purporting to ban both racial balancing and permanent preferences. At the same time, in striking down the all-too-transparent point system used to award racial preferences by the university’s undergraduate school, in Gratz v. Bollinger, the justices signaled that concealment of the nature and magnitude of racial preferences–which has long been indispensable to their political sustainability–will henceforth be the way for selective universities to insulate them from legal challenge as well.
Taken together, the decisions reflect the majority’s evident desire to perpetuate the racial-preference regime long used by almost all major establishment institutions while using obfuscation to insulate it from the overwhelming popular disapproval that candor would have provoked.i
I. Grutter’s impact: a racial spoils system forever?
In Grutter, Justice O’Connor, who had never before voted to uphold a system of racial preferences, quoted a 1977 article asserting that "[i]t would be a sad day indeed, were America to become a quota-ridden society, with each identifiable minority assigned proportional representation in every desirable walk of life." But now she has done more than anyone alive to entrench just such a pervasive racial spoils system. In doing so, she and her four more liberal colleagues have cast aside, perhaps forever, the Rev. Martin Luther King’s dream of an America in which people are judged "not by the color of their skin but by the content of their character."
Justice O’Connor’s majority opinion in Grutter and concurrence in Gratz are the law of the land because she was the only member of the Grutter majority who also joined Chief Justice William H. Rehnquist’s far less important opinion in Gratz. (Justice Stephen G. Breyer joined O’Connor’s opinions in both cases, but not Rehnquist’s opinion in Gratz.)
A. The claim that racial academic gaps were shrinking was deceptive.
Justice O’Connor struggled mightily to reconcile the seeming permanence of the diversity-based preferences that she upheld in Grutter with her own (and the Court’s) longstanding position that "enshrining a permanent justification for racial preferences would offend" equal protection, as she put it in Grutter. She resolved this struggle by taking refuge in a statement remarkable both for its mutable notion of equal protection and its willful blindness to inconvenient facts: "We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today."
What basis was there for this expectation? O’Connor offered only the profoundly misleading assertion that during the 25 years since Bakke, "the number of minority applicants with high grades and test scores has indeed increased." The only documentation she cited was the law school’s speculative assertion at oral argument that more blacks could win admission on their academic merits now than in 1964. Whether this was self-deception or just plain deception, the Grutter majority must have been aware of the overwhelming evidence that the racial academic gap is both enormous and growing.
The average black high school senior has weaker reading skills and has learned less about math, U.S. history, and geography than the average white or Asian 8th grader, according to the scores on National Assessment of Educational Progress (NAEP) tests of a representative national sample of 17-year-olds. (Hispanics do a little better than blacks.)ii Careful studies show appalling deficiencies in the academic performance even of upper-middle-class black kids in top-notch, integrated schools.iii The results are especially dramatic at the top of the academic curve: In 2003, after 30 years of racial preferences, only 72 blacks nationwide scored above 1500 on the SAT. That comes to just over one-half of one percent of the total of 13,897 students with scores above 1500.iv
The justices ignored overwhelming evidence that this gap has been growing for the past 15 years, reversing the trend of the 1970’s and most of the 1980’s. For example, in 1978 the average black math NAEP score was at the same level as the 13th percentile of all white scores, meaning that 87 percent of whites had higher scores. By 1990, the average black score had moved up to the 24th percentile of white scores. But then it fell back just as dramatically, down to the 14th percentile of white scores, by 1999.v Similarly, the black-white SAT gap has grown from 189 points in 1988 to 206 in 2002 (a perfect score is 1,600), with "no compelling evidence that any improvement is in the offing."vi Do the tests discriminate against blacks? The opposite is true. "The average rank in class for black students is appreciably lower than the average rank in class for white students within each SAT interval. . . . Black students with the same SAT scores as whites tend to earn lower grades," and cluster toward the bottom of their classes academically.vii
If this trend continues, the number of African-Americans capable of winning admission to selective schools on their academic merits may be even smaller 25 years hence than it is now. The persistence of this large racial gap is among the reasons (others are detailed below) why the racial-preference regime approved in Grutter seems destined to become a permanent and ever more pervasive organizing principle of American society.
B. The disconnect between popular and elite opinion.
It might seem unlikely at first blush that racial preferences could long survive politically given the electorate’s overwhelming disapproval. While many in the news media portrayed Justice O’Connor’s opinion in Grutter as reflecting a broad national consensus—for example, in a front-page headline in The Washington Post, "Court Mirrors Public Opinion"–this was nonsense. Dozens of surveys show that more than two-thirds of Americans–and strong majorities of African-Americans in many polls–have consistently opposed racial preferences like those upheld in Grutter. Polls show much greater support for "affirmative action," but only because the phrase is ambiguous and misleading, as discussed below. What O’Connor’s opinion mirrored was the views of most leaders of the political, professional, academic, corporate, military, and journalistic establishment. She also adopted—indeed, mandated–their practice of keeping the general public in the dark about the nature and magnitude of the preferences that they use and support.
On no other issue have elected officials and establishment leaders implemented so pervasively a policy rejected so overwhelmingly by the general public. The 83 amicus briefs supporting Michigan’s preferences in Grutter and Gratz were joined by a stunningly broad array of establishment institutions and figures. As detailed by Professor Neal Devins in "Explaining Grutter v.Bollinger," in the [publication and date TK], they included 124 House members and 13 senators (with no member of Congress on a brief opposing preferences); 23 states and the Virgin Islands (with only Florida opposing preferences); an overwhelming majority of big business, labor, and civil rights groups; 91 colleges and universities (with none supporting the other side); every major educational association; and a group of former high-ranking officers and civilian leaders of the military.
What explains this stark disconnect between establishment leaders and ordinary Americans? Perhaps the leaders better understand the utility of preferences in keeping the racial peace, especially in the military, where resentment by the disproportionately black enlisted men of the overwhelmingly white officer corps became a major problem during and after the Vietnam War. But the personal self-interest of establishment leaders may be the more important explanation.
"Because academic credentials are significantly correlated with parental income, social status, and education," as Judge Danny J. Boggs wrote in dissent from the Sixth Circuit’s May 2002 decision upholding the law school’s preferences, "the malign effects of discriminatory policies like the law school’s will rarely fall upon the children of the educators who craft them or the judges who rule upon them." Or, he might have added, the leaders of other establishment institutions. Not only do whites and Asians who have reached leadership positions have little to lose from racial preferences, they have much to gain. "They scramble to show deference to minorities because only deference erects the firewall that protects them from stigmatization as racist," in the words of Shelby Steele.viii Meanwhile, virtually all black and Hispanic leaders benefit even more directly from racial preferences, which help them win contracts, coveted positions in establishment instittions, and racially gerrymandered election districts, while helping their children win admission to selective colleges. And all of the proposed strategies for pursuing diversity without racial preferences would improve the chances of working class black and Hispanic kids (among others) at the expense of black and Hispanic leaders’ children, who now reap the vast majority of racial preferences. Polls show far less support for preferences among low-income blacks, who get nothing from them.
Why is the Supreme Court so much more responsive to establishment than to popular opinion? The justices are themselves leaders of the establishment, of course. They come from prestigious universities and go to glittering dinner parties. Their closest professional collaborators are their extremely bright young law clerks, recent graduates of elite law schools where diversity is almost religious dogma and the views of ordinary Americans, conservatives, and even centrists are widely scorned. The justices’ reputations are shaped mainly by liberal-leaning mainstream news media, law professors, lawyers’ groups such as the American Bar Association, women’s groups (which often honor first-woman-Justice O’Connor), and other civil rights groups. They know that opposing racial preferences will get them caricatured as intolerant zealots and supporting preferences will win them praise for enlightenment. In addition, the only justice whose vote was in much doubt—O’Connor–surely knew that a vote to strike down the preferences in Grutter as well as Gratz would have been so widely denounced, distorted, and evaded by establishment leaders and the media as to harm both the Court’s stature and her own reputation.
C. Why preferences are probably here to stay despite their unpopularity.
The question still remains: How can such heavy racial preferences survive politically when the vast majority of Americans oppose them? The most obvious reason is that while the issue is of peripheral concern to most people–less than 20 percent of white voters tell pollsters it would play a significant role in determining their votes in presidential elections—it is the one great passion of powerful special interest groups. These include not only black and Hispanic leaders, liberal activists, their media allies, and universities but also big companies that see preferences as an inoculation against discrimination suits, boycotts, and bad publicity.
The pro-preference forces appear likely to gain political strength for the foreseeable future because Hispanic immigrants and their children are becoming an ever-larger percentage of the electorate. Hispanics whose ancestors never experienced racial discrimination in this country (as well as many whose ancestors did) are reaping an ever-larger share of the racial preferences originally devised as a temporary remedy for descendants of slaves.
But since lopsided majorities even of black and Hispanic voters oppose racial preferences in some major polls–as do even more lopsided majorities of white and Asian voters–deception about the actual operation of such "affirmative action" programs is probably indispensable to their political sustainability. Indeed, the phrase "affirmative action" is itself misleading, although it has such wide currency that even most opponents (unwisely) use it as synonymous with racial preferences. Polls show overwhelming support among black people and substantial support among whites for "affirmative action" despite the overwhelming unpopularity of racial preferences. The most plausible explanation is that many Americans interpret "affirmative action" as including politically popular programs supported even by opponents of racial preferences, such as aggressive enforcement of anti-discrimination laws, recruitment and outreach efforts to promote equality of opportunity, and preferences for promising working-class and disadvantaged students of all races. Such efforts are consistent with the original meaning of "affirmative action."
The mass media routinely obscure the workings of "affirmative action," typically by downplaying or omitting the fact that these programs systematically discriminate against whites and Asians in academic competition against less qualified blacks and Hispanics. A lot of people have been fooled. A June 2003 Gallup Poll, for example, asked: "If two equally qualified students, one white and one black, applied to a major U.S. college or university, who do you think would have the better chance of being accepted to the college–the white student, the black student, or would they have the same chance?" The correct answer would be the black student, and every university official and journalist knows it. But respondents were almost evenly divided, choosing "black student" by only 31 to 29 percent. And Black and Hispanic respondents incorrectly chose "white student" by 67 to 5 percent and 44 to 14 percent, respectively, demonstrating a stunning detachment from the reality that, in Steele’s words: "Today a wealthy [or unwealthy] black will be preferred over the son of a white mailman at all of America’s best universities."ix
The success of racial-preference advocates in entrenching a system that offends the values of the vast majority of Americans is illustrated by the increasing reluctance even of conservative Republican politicians to oppose preferences. President Bush’s remarkable 180-degree turn to a pro-preference position is a case in point.
While Bush has usually sought refuge in ambiguity, he went on record advocating completely race-blind admissions when he was Governor of Texas and said during the 2000 campaign that he "opposes . . . racial preferences." But in January 2003, Bush–and his Administration’s legal brief–sought to straddle the issue by coming very close to calling racial diversity a compelling interest, while opposing the preferential regimes in Grutter as well as Gratz chiefly on the ground that racial diversity could be maintained without preferences. Bush’s equivocal position was a signal to the justices that even a conservative Republican president had found it politically necessary to jump onto the racial diversity bandwagon. Next Bush completed his 180 by tacitly jumping on the racial preference bandwagon too. "I applaud the Supreme Court for recognizing the value of diversity on our nation’s campuses," Bush said within hours of the Grutter decision, sounding as though he had won a great victory. There was no hint of disapproval of the racial preferences that the justices had embraced, and that he had previously opposed.
II. Justice O’Connor’s opinions: hiding the ball as constitutional imperative
While candid and intellectually respectable arguments can be made for a permanent regime of racial preferences, Justice O’Connor’s analysis was neither candid nor intellectually coherent. She wished away the growing racial gap in achievement and made other misleading assertions of fact. She wallowed in logical confusion and internal contradictions. These flaws, together with her mandate for universities to conceal the nature and magnitude of their preferences, illustrate the integral role of obfuscation and deception in sustaining the brand of affirmative action that Grutter approved.
A. The preferences the Court upheld were heavier than those it struck down. This striking fact went unmentioned in the nine justices’ 13 separate opinions in the two cases and in most commentaries. But it is well documented in the record, highly revealing, and inconsistent with Justice O’Connor’s boilerplate assertion that "[t]o be narrowly tailored, a race-conscious admissions program must not ‘unduly burden individuals who are not members of the favored racial and ethnic groups.’ " That assertion suggests that the focus of the narrow-tailoring inquiry in this zero sum game–which excludes one equally or better qualified Asian or white applicant for every black or Hispanic admitted by virtue of racial preferences–should be the number of whites and Asians excluded. And that is a function of the magnitude of the preferences.
To appreciate the extreme magnitude of the preferences that Grutter upheld, let’s start with those that Gratz struck down. The weight given to race by Michigan’s undergraduate school appears to have been fairly typical of selective universities, but unusually easy to measure because Michigan was forced to make public the 150-point "selection index" it used to rank applicants. The now-defunct selection index awarded 12 points for a perfect 1,600 SAT score, only 2 points more than it awarded for a mediocre 1,010; 20 points for each grade point average unit (i.e., the difference between 3.0 and 4.0); and 20 points for being black, Hispanic, or Native American. So at the college, a preferred-minority applicant with a B (3.0) average would have had the same score on the selection index as an otherwise indistinguishable Asian or white with an A (4.0) average. The effect was identical to that of a system penalizing whites and Asians by having their A’s counted as B’s, their A minuses as B minuses, and so forth.
At the law school, "race is worth over one full grade point of college average" (emphasis added), according to Judge Boggs’s dissent. Preferred-minority applicants "with a high C to low B undergraduate average are admitted at the same rate as [white and Asian] applicants with an A average with roughly the same LSAT scores," he added. The Sixth Circuit majority did not dispute this. The law school sought to change the subject by arguing that racial disparities in GPA’s and LSAT scores prove nothing because it also considers "soft" variables, such as the enthusiasm of recommenders and the quality of the applicant’s essay, undergraduate school and curriculum. But that would diminish the force of Boggs’s analysis only on the assumption–which the law school disavowed–that preferred minorities do much better on these soft variables than Asians and whites.
The use of somewhat heavier racial preferences at the law school may reflect the facts that the percentage of well qualified applicants who are black, Hispanic and Native American declines as the selectivity of the school increases. Indeed, more than 70 percent of the black, Hispanic and Native American students admitted in 2000 (for example) would have been rejected by a race-blind process, an expert witness for the law school testified. In any event, the result at the law school has been to give what Sixth Circuit Judge Ronald Lee Gilman, in another dissent, called such "grossly disproportionate weight to race and ethnicity" as to amount to a "two-track system that is functionally equivalent to a quota" and that unconstitutionally "applies one standard for minorities and another for all other students." This from a Clinton appointee who also said that the more modest preferences contemplated by Powell in Bakke would be "clearly constitutional."
This is the system that O’Connor approved in Grutter as a model for using racial preferences without risk. How can it make sense to strike down one racial preference while upholding an even heavier one? O’Connor did not address the question, or even acknowledge it. But the answer is clear enough. While the law school uses an even more extreme double standard, it is also more opaque and wrapped in layers of obfuscation. The new constitutional imperative is to hide the ball.
This point was obvious not only to the four dissenters in Grutter but also to Justices David H. Souter and Ruth Bader Ginsburg, who joined O’Connor’s opinion in Grutter but broke with her in Gratz. "The college simply does by a numbered scale what the law school accomplishes in its ‘holistic review,’ " Souter wrote in his dissent in Gratz. "If honesty is the best policy, surely Michigan’s accurately described, fully disclosed College affirmative action program is preferable to achieving similar numbers through winks, nods, and disguises," Ginsburg wrote in another dissent.
(In fact it was not honesty, but a professor’s freedom-of-information-act request and then the lawsuits, that dragged into the open the nature and magnitude of the undergraduate school’s racial preferences. They had previously been closely guarded secrets, as at almost all universities.)
O’Connor’s no-quota-here rationale in Grutter goes like this: The law school "engages in a highly individualized, holistic review of each applicant’s file." It "awards no mechanical, predetermined diversity ‘bonuses’ based on race or ethnicity." It makes "a flexible assessment of applicants’ talents, experiences, and potential." It does not " ‘insulat[e] the individual from comparison with all other candidates for the available seats.’ " She also stressed (in her Gratz concurrence) that the law school’s individualized review "include[es] the contribution each individual’s race or ethnic identity will make to the diversity of the student body, taking account diversity within and among all racial and ethnic groups."
Individualized or no, the record strongly suggests that the law school’s system puts as heavy a racial thumb on the scales as necessary to admit as many preferred-minority students as it thinks can muddle through academically. It therefore "makes race a decisive factor for virtually every minimally qualified underrepresented minority applicant," to borrow from Rehnquist’s explanation in Gratz (which O’Connor joined) of why the undergraduate school’s system was not "narrowly tailored."
In any event, why in the world should the equal protection rights of the roughly 35 Asians and whites who are denied seats on account of their race each year at the law school depend on what process is used to select which 35 or so less-qualified black, Hispanic, and Native American students will get those seats? By upholding in Grutter preferences heavier than the ones she struck down in Gratz, O’Connor has made "narrow tailoring" an idle and meaningless ritual that serves no purpose other than deception.
B. O’Connor tacitly approved outright racial balancing while purporting to reject it. Seeking " ‘to assure within its student body some specified percentage of a particular group merely because of its race or ethnic origin’ . . . would amount to outright racial balancing, which is patently unconstitutional," Justice O’Connor declared in Grutter. But she apparently didn’t mean it. Elsewhere in her opinion, she redefined "diversity" to make it synonymous with racial balancing and recognized diversity as a compelling interest. As Rehnquist demonstrated in dissent, the law school’s talk of diversity and "critical mass" is "simply a sham" to camouflage racial balancing.
The premise of Justice Powell’s endorsement of "narrowly tailored" racial preferences in his solitary but seminal Bakke opinion, which O’Connor purported to follow, was that the compelling interest to be furthered was intellectual diversity, not racial diversity as such. Hence Powell’s assertion that "[p]referring members of any one group for no reason other than race or ethnic origin is discrimination for its own sake. This the Constitution forbids." But O’Connor abandoned Powell’s premise by holding that the "unique experience of being a racial minority" was all the intellectual diversity one needs to earn a preference. She thereby endorsed giving diversity bonuses to all blacks, Hispanics, and Native Americans and presuming every increase in their numbers as furthering intellectual diversity.
This mirrors the approach of most selective universities. For all their talk of diversity, their actions show that their goal is racial balancing, period. If intellectual diversity were the goal, they would have preferences for evangelical Christians, Hindus, impecunious whites and Asians, and conservative Republican professors. Each of these groups is more underrepresented on campuses and more likely to add to intellectual, political, and cultural diversity than are the middle-and-upper-class black and Hispanic students who reap the vast majority of the racial preferences. "To the law school," as Judge Boggs wrote, "10 under-represented minority students, each a child of two-parent lawyer families, are considered to be diverse, while children whose parents are Chinese merchants, Japanese farmers, white steel workers, or any combinations of the above are all considered to be part of a homogeneous (and ‘over-represented’) mass."
Any doubt that the system O’Connor upheld in Grutter boils down to "a naked effort to achieve racial balancing," in Rehnquist’s words, is erased by the statistics cited in his dissent and the unintentionally revealing testimony of Dennis Shields, a former admissions director. Shields "testified that at the height of the admissions season, he would frequently consult the so-called ‘daily reports’ that kept track of the racial and ethnic composition of the class . . . to ensure that a critical mass of underrepresented minority students would be reached," O’Connor noted. This practice would have been utterly pointless unless the law school was prepared to "ensure . . . a critical mass" by giving more weight to race after checking the numbers than before if necessary to admit more preferred minorities. But O’Connor purported to believe the law school’s patently incredible claim that it "never gave race any more or less weight based on the information contained in these reports."
Rehnquist’s statistics show the law school’s system to be a carefully managed program to ensure representation of selected minority groups "in proportion to their statistical representation in the applicant pool." In 2000, for example, 7.5 percent of all black applicants and 7.3 percent of admitted applicants were black. The numbers for Hispanics were 4.9 and 4.2 percent; for Native Americans, 1.0 percent and 1.1 percent. The statistics for the four proceeding years showed similarly close correlations.
Might this mean only that similar percentages of black, Hispanic, and Native American applicants happen to be qualified for admission? No: Other statistics cited by Rehnquist show that the law school systematically prefers blacks over Hispanics with similar or better academic qualifications. "For example," he noted, "in 2000, 12 Hispanics who scored between a 159-160 on the LSAT and earned a GPA of 3.00 or higher applied for admission and only 2 were admitted. . . . Meanwhile, 12 African-Americans in the same range of qualifications applied for admission and all 12 were admitted."
If "critical mass" were something other than a rough racial quota, and if the law school were seeking a critical mass each underrepresented group, as it claimed, it would be giving preferences to Hispanics over blacks–who outnumber Hispanics at the law school by 2-to-1–not to blacks over Hispanics. The law school defines critical mass as "numbers such that underrepresented minority students do not feel isolated or like spokespersons for their race," in O’Connor’s words. What are the magic numbers? "[T]here is no number, percentage, or range of numbers or percentages that constitute critical mass," O’Connor explained. This is preposterous on its face. It is also reminiscent of Humpty-Dumpty’s assertion that "when I use a word, it means just what I choose it to mean–neither more nor less."
III. Claimed benefits: diversity, social justice, ending caste structure
Justice O’Connor’s central holding was, of course, her endorsement of claims by the law school and its amici that diversity is a compelling state interest because it enhances "cross-racial understanding" and the educational experiences of all students. Only Justices Antonin Scalia and Thomas dissented from this holding; Rehnquist neither endorsed nor challenged it.
These diversity benefits are indeed substantial. But they are insufficient either to outweigh the costs of heavy racial preferences or to justify O’Connor’s "compelling state interest’ holding. Terrance Sandalow, former dean and emeritus professor of Michigan Law School, has aptly identified both the educational benefits of racial diversity and their limits: "Contact with students of other races may enrich the educational experience, but it can hardly be regarded, as the most ardent advocates of race-sensitive admission policies at times appear to do, as an indispensable element of an undergraduate education. Even the development of a capacity for empathic understanding of ideas and experiences different from one’s own, which I take to be the primary contribution of racial diversity to the intellectual development of students, does not depend upon it. To appreciate that racial diversity may enrich education, but is not indispensable to it, is to open the way for balancing the costs and benefits of programs necessary to achieve it."x
To similar effect, Professor Owen M. Fiss of Yale Law School, one of the most incisive and clear-eyed defenders of affirmative action, wrote in 1997 that "[t]he diversity rationale seems shallow and lacking the compelling quality needed to justify the hardships created by preferential treatment. . . . Even in the university, diversity seems an incomplete justification. . . . Why . . . should we give a plus to blacks but not to members of religious groups that might be underrepresented?"xi
Not only do the costs (detailed below) of using racial preferences to engineer diversity outweigh the claimed educational benefits; they may even negate those benefits, by poisoning the racial climate on campuses. That’s the implication of a 1999 survey of 4,083 students, faculty and administrators at 140 randomly selected colleges and universities.xii Flatly contradicting the conventional wisdom about diversity, the survey showed that "[a]s the proportion of black students rose, student satisfaction with their university experience dropped, as did their assessments of the quality of their education and the work ethic of their peers. In addition, the higher the enrollment diversity, the more likely students were to say that they personally experienced discrimination." Faculty and administrator responses confirmed the same pattern. As the proportion of Asian students rose, on the other hand, the campus climate improved. How to explain such contrasting patterns? In response to another question, 85 percent of the surveyed students agreed strongly (67 percent) or moderately (another 18 percent) that "no one should be given special preference in jobs or college admissions on the basis of their gender or race." Asians don’t get preferences.
And as Yale Law School’s Peter H. Schuck has demonstrated, experience casts grave doubt on the notion that preferentially engineered racial diversity fosters racial harmony or stimulates classroom debate.xiii Indeed, in the words of Harvard sociologist Orlando Patterson, a racial-preference supporter, "[N]o group of people now seems more committed to segregation than Afro-American students and young professionals."xiv
Aware of the diversity rationale’s weaknesses, many advocates prefer to justify racial preferences as a form of compensatory justice for the evils of slavery and past discrimination and a prophylaxis against continuing discrimination. As Professor Fiss wrote in the same 1997 article, however, "The rationale of compensatory justice has the compelling quality lacking with diversity, but it falters because of the lack of identity between the victims of the wrongs committed and the recipients of the preferential treatment—and between the perpetrators of those wrongs and the people who bear the cost of the remedy. Nor are we told why the compensation should take the form of preferential treatment."
The racial academic gap probably is a long-term legacy of slavery and past discrimination. But dwelling on that does no African-American child a bit of good. Nor do the racial-grievance industry or preferences for middle-and-upper-class black children offer a shred of hope for getting substantial numbers of poor black and Hispanic kids off the treadmill toward bad educations, low-level jobs, or worse.
Fiss identified yet another, more powerful justification for preferential affirmative action: "[W]e should see it as a structural remedy for a structural problem: as a means of eradicating the caste structure that now mars our society and that has its roots in slavery and the segregation of Jim Crow. By giving blacks a greater share of the privileged positions of society, affirmative action improves the relative position of the group that lies at the bottom of the heap. It aims to end the racial ordering of American society. . . . as a form of distributive, rather than compensatory, justice."
Justice O’Connor suggested a variation on this structural rationale in a brief digression from her diversity discussion in Grutter: "In order to cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity. All members of our society must have confidence in the openness and integrity of the educational institutions that provide . . . the training and education necessary to succeed in America."
This goal does seem compelling, if pursued by effective and tolerable means. Breaking down de facto racial stratification and providing young black people who have not yet made it safely into the middle class with hope–in the form of visible evidence that they can get a fair shake if they study and work hard–would be huge benefits. The role of racial preferences in integrating the selective campuses that serve as gateways to opportunity may have done that–but to a very limited extent that has diminished over time.
While the perception of many underprivileged black children that the doors of opportunity are closed to them is real and important, it is also a myth. The major obstacle to black advancement in America today is not white racism; it is bad education. "America, while still flawed in its race relations. . . is now the least racist white-majority society in the world; has a better record of legal protection of minorities than any other society, white or black; [and] offers more opportunities to a greater number of black persons than any other society, including all those of Africa." So said the same Orlando Patterson in 1991.xv As if to prove his point, the CEO’s of AOL-Time Warner, American Express, Merrill Lynch, and Fannie Mae are all black, as are the Bush Administration’s top two foreign policy officials and Education Secretary. While racism obviously has not been eradicated in our society, it has been driven to the margins.
More to the point here, the major reason for the destructive myth that even well-educated black people can’t get a fair shake is not the racial composition of the Ivy League. It is the drumbeat of publicity wildly exaggerating the persistence of white racism that civil rights groups, black politicians, academia, and the mainstream media churn out on a daily basis. And there is no basis for expecting that the crippling loss of hope among underprivileged black people–which has not been dispelled by 30 years of racial preferences–will be dispelled by another 25 years.
College admissions preferences have done nothing at all for the poor blacks "at the bottom of the heap." How could they, when millions of black children drop out of high school and most of those who graduate have learned no more than the average white or Asian eighth grader? Eighty-six percent of the recipients of racial preferences in college admissions are middle and upper class.xvi A great many of these preference recipients may never have suffered serious racial discrimination. Many are more affluent than most of the academically better-qualified Asians and whites passed over on account of their race. Most Hispanic children are descendants not of slaves but of recent immigrants who came to America because they saw it not as a caste-ridden society but as the land of opportunity.
Indeed, by directing so much effort, energy, and political capital to preserving preferential treatment for the most fortunate black and Hispanic people and so little to helping the least fortunate, the advocates of racial preferences share responsibility for our society’s failure to implement effective remedies for the desperate condition of the underclass.
IV. Heavy costs: Doing most black and Hispanic children more harm than good
Some of the largest social costs of racial preferences are so familiar as to require only brief mention:
Unfairness. For every black and Hispanic applicant admitted on account of race, one Asian or white with better academic qualifications is unfairly excluded on account of race. This burden falls very disproportionately on Asians, who are considered "overrepresented" at top universities because they outperform all other groups academically, to the point that some colleges appear to keep their Asian numbers down by accepting substantially less qualified whites, as well as far less qualified blacks and Hispanics It is telling that since racial preferences were banned in California and Texas in 1996, admissions of Asians have surged, while admissions of whites have been relatively flat,.
Divisiveness. Racial preferences are extremely divisive, and not only because of their unfairness. Preferences leave many whites and Asians who are not directly affected thinking that maybe they are. They also inspire an ugly sense of unearned entitlement among some black and Hispanic people, who come to see racial double standards as a birthright. And they encourage all Americans to see themselves as members not of a national community but of tribes struggling for racially allocated shares of every pie.
Stigma. Racial preferences hurt the best black and Hispanic students, who suffer greatly from the inaccurate and rarely acknowledged but widespread perception that they must have needed preferences to get in. As Justice O’Connor herself wrote in 1989, in her plurality opinion in Richmond v. J.A. Croson Co., unless racial classifications are "strictly reserved for remedial settings, they may in fact promote notions of racial inferiority and lead to a politics of racial hostility."
Dishonesty. As is discussed above, racial preferences survive only by living on lies. Systematic obfuscation by establishment institutions—now including the Supreme Court—of the nature and magnitude of the racial preferences that virtually all of them use has been and will remain indispensable to their political perpetuation. Such pervasive dishonesty eats away at the health of the body politic in countless ways, both direct and indirect.
Harm to "beneficiaries." Beyond that, the costs of systematic racial preferences to black and Hispanic Americans as a group outweigh the benefits, even apart from the effects on white and Asian victims of discrimination. Racial preferences may do more harm than good even to some unknowable percentage of the individual recipients. These students have been handed a great opportunity, of course, and many or most may benefit. But virtually all of those who would not have been admitted but for racial preferences find themselves competing academically against Asian and white classmates who arrive far better prepared. As a group, blacks and Hispanics have failure and dropout rates several times higher than their white and Asian classmates. Very few do well enough to win admission to elite professional schools on their academic merits. That’s why those schools also use racial double standards. Distressing percentages of the black students that they admit fail to graduate, compile unimpressive academic records, and/or flunk their first bar exams or medical boards.
So it should not be surprising that black and Hispanic college and graduate students feel stereotyped as incapable of competing on a level academic playing field. Consider this unusually candid depiction of the de facto racial academic hierarchy at Colgate University by Phillip Richards, an Associate Professor of English (who is black): "Perhaps it’s time to stop . . . deceiving minority applicants into thinking that they will achieve the same academic and social success as their white counterparts–or even be held to similar standards. . . . With the exception of a few high-performers–often women from the West Indies or Africa–most black students do not achieve academic distinction. That experience is clearly not unusual. The U.S. Department of Education recently released a report documenting that black students arrive on campuses with less preparation for college-level work than other groups, and that almost half of black undergraduates get C’s or lower. . . . Although every professor I know has observed it, the institution has done little to deal openly with the problem within the faculty as a whole. Public discussion focuses on multiculturalism and diversity–not the problem of inadequate black intellectual achievement at a prestigious academic institution."xvii
Academically overmatched black and Hispanic students often end up rationalizing their failure to excel by complaining of "institutional racism" by the same universities that gave them racial preferences. "Forced to compete with the best and brightest white and Asian students, minority students with substantially lower academic skills are bound to resent their competition and eventually lash out at the academic criteria by which they are judged and unfortunately often found wanting."xviii And whites, terrified of being seen as racist, censor themselves to avoid any open disagreement with grievance-laden black students and politically correct professors who reinforce their victimology.xix
Is this sort of atmosphere really good for preferentially admitted black and Hispanic students? Some educators suggest that many might be better off–happier, better educated, and more successful in the long run–at schools a notch lower on the prestige ladder, where they could be academically competitive. (I have heard the same said privately by a law professor who is a prominent public advocate of racial preferences.) There is some empirical evidence for this proposition. "Affirmative action is contributing to the number of minority students getting lower grades, which seems to contribute to them selecting non-high-achievement careers," researcher Stephen Cole, principal author of a copiously researched 2003 book titled Increasing Faculty Diversity, told The Chronicle of Higher Education.
Perpetuating the gap. The most severe social cost of racial preferences is probably their role in perpetuating our disastrous failure to educate the vast majority of black and Hispanic children decently during their first 18 years. By fostering the illusions that preferences benefit low-income blacks and Hispanics and that respectable numbers of them are well-qualified for elite college work, the preferential regime provides establishment institutions, politicians, civil rights groups and others with excuses for their unwillingness to confront the real reason for continuing racial inequality, which is abysmal education during the first 18 years, at home as well as at school.
Attacking the root causes of bad education has never been a priority for liberal black and Hispanic politicians, civil rights groups, or other Democrats (or of most Republicans). That would require taking on the teachers unions–which double as the most powerful interest group in the Democratic Party and perhaps the most intractable obstacle to serious education reform–and confronting the cultural disengagement of many black families from academic effort. Civil rights groups much prefer to caricature America as pervasively racist and clamor for more racial preferences and for educational policies that have already failed. These include pouring more money into unreformed urban school systems (many of which are already better-funded than suburban districts and some of which have been lavishly funded without success) and shrinking class sizes (already relatively small at many urban schools).xx Meanwhile, the racial gap grows, blighting the life prospects of millions of black children.
Racial preferences also send a pernicious message to black and Hispanic students: They are not expected to work hard or meet the same academic standards as whites and Asians. "In this light," John H. McWhorter wrote in his 2000 book, Losing the Race: Self-Sabotage in Black America, "the maintenance of affirmative action hinders the completion of the very task it was designed to accomplish, because it deprives black students of a basic incentive to reach for that highest bar." Similarly, Justice Thomas raised the possibility in his Grutter dissent that the racial-preference regime might be a disincentive to academic effort, thus helping "fulfill the bigot’s prophecy about black underperformance–just as it confirms the conspiracy theorist’s belief that ‘institutional racism’ is at fault for every racial disparity in our society."
Even if racial preferences don’t aggravate the racial gap in academic performance, they surely do nothing to reduce it–an objective far more vital to the futures of millions of black and Hispanic kids than getting affirmative-action tickets to elite universities for a fortunate, fairly affluent few thousand.
V. What the Court should have done
The best argument by far for upholding racial preferences in university admissions is that the justices should not lightly disregard the unique near-unanimity of establishment leaders on this issue, and should not seek to stop selective universities from using the admissions criteria that virtually all of them want to use. This logic is reinforced by the facts that neither the text of the equal protection clause nor the history of the 14th Amendment’s framing provide unambiguous support for the view that the law must be colorblind.
On the other hand, the Supreme Court has held repeatedly that governmental preferences for racial minorities must be subjected to strict scrutiny. Stare decisis argues for adhering to that position. So does the rapid breakdown of the old black-white paradigm and white-voter dominance, as Hispanics of many varieties, Native Americans, Aleuts, Eskimos, Arabs, and others (sometimes including Asians) clamor for preferences of their own. With women as well as racial minorities qualifying for many preferential programs, the only people always on the losing end of the race-gender spoils system are non-elite white males—about a third of the electorate.
The justices should therefore have applied strict scrutiny in fact as well as in name. They should have struck down the law school’s racial preferences as well as the undergraduate school’s, as invalid absent proof that alternative means of pursuing diversity would not work, unnecessarily weighty in any event, and thus not narrowly tailored. As a gesture of deference to university administrators and elected officials, the justices should probably have left open the question whether diversity or any other rationale could justify more modest racial preferences. They should also have allowed a year or two for the law school to devise alternatives to its current system, and perhaps even more time than that for any school that can make an extraordinary showing of need; the service academies might qualify, given their legitimate concerns that a plunge in the number of black officers would hurt morale.
I would hesitate to advocate such a ruling if it seemed likely to bring about a drastic drop in black or Hispanic enrollments at the most selective schools. But that seems most unlikely, because it is utterly clear that even a flat ban on racial preferences (which I don’t advocate here) would not be rigorously observed and could not be vigorously enforced. The quasi-religious zeal that university administrators have poured into maintaining racial balance by any means necessary, combined with their ingenuity at devising facially race-blind proxies for race and subjective criteria to camouflage covert racial preferences, would prevent any drastic drop in minority enrollments and might prevent any drop at all.
We know this from experience. Within a few years after racial preferences were banned in the late 1990’s in California (by a 1996 referendum), Texas (by a now-overruled 1996 judicial decision) and Florida (by a 1999 order of Governor Jeb Bush), campuses in all three states found other ways to admit roughly as many black and Hispanic students as before. (California’s top professional schools have been an exception.) And while minority enrollments initially plunged after preferences were banned in California and Texas, their pioneering work at circumventing such bans would have made it easy for others to do the same in a short time.
The principal methods of maintaining racial balance in these three states have been to admit automatically the students with the highest class ranks even at the weakest schools in the poorest neighborhoods; to de-emphasize standardized test scores; and to give more weight to subjective evaluations of individual applicants and how they would contribute to "diversity," based on their essays, life stories, and mastery of Spanish. One especially creative variation on this theme is UCLA Law School’s offer of preferences to applicants who express interest in "critical race studies," a field whose principal contribution to learning appears to be generating grist for the racial-grievance mill.
Some scholars suggest that the widespread evasion of the preference bans in these three states has invited disrespect for the law and degraded academic qualify, by admitting academically unqualified disadvantaged students and de-emphasizing the best measures of academic potential in assessing applicants of all races. These scholars see banning or curbing racial preferences as a futile exercise that does more harm than good.
This argument is not easily dismissed. But the ultimate question is whether these costs of curbing racial preferences would outweigh the benefits. And the latter would be not be confined to reducing the evils attributed above to racially preferential admissions. One of the greatest benefits would have been to put the Court’s moral authority behind King’s fading dream of an America in which people would not be judged by the color of their skins (or the DNA of their ancestors). Another would have been to spur the establishment leaders who so passionately seek racial balance to divert some of the formidable energy, skill and influence they have so far invested in maintaining racial preferences into two far worthier, far more challenging, causes: giving special consideration to promising low-income students of all races and closing the huge black-white gap in academic achievement.
VI. What policymakers should do now.
Assuming that racial preferences are here to stay, the best hope for restraining their growth and magnitude might be legislation forcing state universities to make their preferential admissions systems more transparent, by requiring, for example, that they regularly make public such data as the average standardized test scores and average family incomes of each group of preferred-minority students, of whites, and of Asians. Such a proposal could be attached to a pending Senate bill backed by Senator Edward Kennedy to require colleges to disclose information about alumni children whom they admit.xxi Why not have full disclosure concerning all special preferences, whether for children of alumni, large donors, or preferred minorities? Universities would furiously oppose any such law. But affirmative action advocates such as Justice Ginsburg, who praised Michigan for its "accurately described, fully disclosed college affirmative action program," could hardly object. And full disclosure might dissuade universities from using preferences so heavy and double standards so blatant as to enrage the electorate.
Disclosure requirements might also create pressure for universities to push harder to admit working class and poor students of all races, who are disproportionately black and Hispanic. Such "economic preferences" pose no serious constitutional problems and enjoy widespread popular support, in marked contrast to racial preferences. The main reason is that economic preferences, if carefully designed, are completely consistent with traditional concepts of academic merit. The hope is that the hard work, grit, and raw talent that enables children born into modest circumstances to make it to the top academically in their neighborhood schools, combined with remedial programs and other state assistance, would enable many of them to catch up with college classmates from more prosperous backgrounds.
Many top schools already have economic preferences in theory. But most have invested minimal effort in recruiting the best low-income students, who might never imagine themselves at an elite college unless recruited. The most ambitious merit-based economic preferences ever attempted are the class-rank systems in Texas, California and Florida. Critics who dismiss such plans as nothing but thinly guised racial-balancing schemes, as did Justice Souter in Gratz, are quite wrong.
To be sure, the political impetus for such class-rank plans does come largely from the expectation that they will facilitate admissions of disproportionate numbers of black and Hispanic students. But the class-rank plans have the virtue of doing this not by rewarding middle-and-upper class black and Hispanic students with less than stellar academic records for their skin color, but as a side effect of rewarding the best black, Hispanic, white, and Asian students at even the weakest schools–whose relatively low standardized test scores might otherwise disqualify them–for their hard work and academic potential.
Indeed, economic preferences for relatively low-income students who have worked hard and done well in weak schools seem far truer to the original vision of affirmative action than do racial preferences that–while draped in the rhetoric of civil rights and fairness–leapfrog children of black and Hispanic lawyers and doctors ahead of otherwise better-qualified children of white and Asian laborers and secretaries.
The main defect of the class-rank plans is that some of their beneficiaries have been so poorly educated during the first 18 years of their lives that–through no fault of their own–they may struggle with academic work at the university level even more than many current beneficiaries of racial preferences, who come from more prosperous backgrounds and better schools.
For this and other reasons, it would probably make more sense to give economic preferences on an individualized basis to the most promising prospects. An important study by the Century Foundation, released in March 2003, suggests that replacing racial preferences with such economic preferences would produce a dramatic increase in economic diversity and only a modest decline in racial diversity, with black and Hispanic students slipping from 12 percent to 10 percent of the student bodies at 146 top universities. Economic preferences would also be the most logical offset to the preferences for children of rich donors and alumni (such as George W. Bush) that have been so widely cited as less fair and legitimate than racial preferences. (Colleges are, of course, free to end preferences for the privileged.)
Whatever policymakers do about racial and economic preferences, they should see Grutter as a challenge to get serious about fixing the root causes of the disastrously deficient academic performance that leaves the vast majority of Hispanic and (especially) black kids incapable of competing for admission to selective universities without the crutch of racial double standards.
This will require much more than simply spending more money on inner-city schools. Liberal Cambridge, Mass., spends $17,000 per pupil — more than most of the nation’s wealthiest suburban school districts — keeps class sizes very small, buses students to promote racial balance, and has eliminated ability groupings in the name of racial equality. But still, the city’s black and Hispanic students have done very badly on statewide tests–worse than those in nearby communities "with comparable demographics [that] spend only half as much or less per pupil."xxii
The imperative is to create escape routes–such as charter schools and vouchers for use at private schools—from bad public schools and also to radically reform the ordinary public schools. These objectives are complementary, because competition from charter and voucher schools may be the best hope for reforming other public schools. Genuine reform would mean removing such obstacles to good education as union contracts and civil service rules that make it impossible for principals to get rid of nonperforming teachers and laws that make it impossible for teachers to prevent unruly students from destroying the learning process. This would require facing down bitter resistance from entrenched bureaucracies, teachers unions, and others wedded to the dismal status quo.
The black community itself also needs to confront the evidence of a pattern of disengagement from academic effort among many black families, as evidenced by (among other things) the lagging academic performance even of affluent black students at good schools. "Income alone does not explain the racial scoring gap," according to The Journal of Blacks in Higher Education.xxiii For example, "Whites from families with incomes below $10,000 had a mean SAT test score that was 46 points higher than blacks whose families had incomes of between $80,000 and $100,000. . . . Blacks from families with incomes of more than $100,000 had a mean SAT score that was 142 points below the mean score for whites from families at the same income level."
In the much-studied, racially integrated, well-funded public schools in affluent Shaker Heights, Ohio, only 4 percent of black students (and more than half of whites) passed with honors Ohio’s statewide proficiency tests in 1999-2000. This despite relatively modest gaps in parental education and income and despite the schools’ energetic efforts to help black students. The recently deceased scholar John U. Ogbu, invited by anguished black parents to study and explain the gap, did so in his last book, Black American Students in an Affluent Suburb: A Study of Academic Disengagement (2003). Many black parents suspected hidden biases against their children. But this was not what Ogbu found. After eight months of interviews, classroom visits, and other research, he wrote that by their own accounts, most black students did not work hard, equating "good school performance with acting white"; that many saw rappers in ghettos as role models; and that many of their hard-working parents paid little attention to their kids’ homework, blaming poor academic performance on teachers and the oppressiveness of white America.
As long as black people blame contemporary white racism for black academic failures, their children will continue to fail (or barely pass) and finish high school unprepared either for college or for good jobs. As Washington Post columnist William Raspberry wrote in October 2003, "[T]he academic achievement gap between black and white students . . . has less and less to do with racism and more and more to do with the habits and attitudes we inculcate among our children. . . .
"How do we best use our intellectual, political and moral capital — priming our children for success, or merely supplying them with excuses for failure?"
i This essay will generally speak of "racial preferences," which identify with precision the programs at issue here, instead of the pejorative "quotas" or the benign-sounding "affirmative action." While the latter phrase is more widely used, it is ambiguous and misleading, as is explained on page TK.
ii Abigail and Stephan Thernstrom, No Excuses: Closing the Racial Gap in Learning, pp 12-17 (Simon & Schuster 2003).
iii Id., pp. 121-24; John U. Ogbu, Black American Students in an Affluent Suburb: A Study of Academic Disengagement (Lawrence Erlbaum Associates 2003).
iv Michael Dobbs, "At Colleges, an Affirmative Reaction," The Washington Post, November 15, 2003, pp. A1, A11.
v No Excuses, pp. 17-22.
vi "The Expanding Racial Scoring Gap Between Black and White SAT Test Takers," The Journal of Blacks in Higher Education, www.jbhe.com/latest/37_b&w_sat.html (accessed December 9, 2003); "CollegeTesting Groups Release 2003 Scores," Black Issues in Higher Education, September 11, 2003, p. 18.
vii William G. Bowen and Derek Bok, The Shape of the River, p. 77, 72-86 (Princeton University Press 1998). This book defending racial preferences is based on the authors’ privileged access to a vast database on affirmative action programs at 28 highly selective universities. See also Stephan and Abigail Thernstrom, "Reflections on the Shape of the River," 46 UCLA L. Rev. 1583 (June 1999), a masterful dissection showing how the data in the book often undermine its conclusions.
viii Shelby Steele, "A Victory for White Guilt," Wall Street Journal, June 26, 2003.
ix Shelby Steele, "Yo, Howard," Wall Street Journal, November 13, 2003.
x Sandalow, "Identity and Equality: Minority Preferences reconsidered," 97 Mich. L. Rev. 1874, 1907 (1999).
xi Owen M. Fiss, "Affirmative Action: Beyond Diversity, The Washington Post, May 7, 1997, p. A21.
xii Stanley Rothman, Seymour Martin Lipset, and Neil Nevitte, "Racial diversity reconsidered," The Public Interest, Spring 2003.
xiii Peter H. Schuck, Diversity in America, pp. 160-69 (Harvard university Press 2003).
xiv Orlando Patterson, The Ordeal of Integration, p. 157.
xv Orlando Patterson, "Race, Gender and Liberal Fallacies," The New York Times, October 20, 1991, section 4, p. 15.
xvi Bowen & Bok pp. 49, 341.
xvii Philip Richards, "Prestigious Colleges Ignore the Inadequate Intellectual Achievement of Black Students," The Chronicle of Higher Education: The Chronicle Review, September 13, 2002, p. 11.
xviii Peter Berkowitz, "Dubious Diversity; The Corrupting Influence of the Supreme Court’s Favorite Doctrine," The Weekly Standard, July 7-14 2003.
xix E.g., Jonathan Kay, "The Scandal of ‘Diversity,’ " Commentary, June 2003, pp. 41, 43..
xx No Excuses, pp.151-168.
xxi See Josh Gerstein, "The Senate and Alumni Admissions," The New York Sun, November 6, 2003, p. 9.
xxii No Excuses, pp. 165-66.
xxiii Citation TK.