Legal Affairs – Ban Racial Preferences, but Keep Affirmative Action

National Journal

One of the toughest issues ever to face the Supreme Court is back on its doorstep, propelled by a deepening split among lower federal courts, and seemingly destined to produce a climactic ruling by 2003: Does the Constitution, which bars virtually all governmental discrimination against African-Americans and some other minorities, nonetheless permit universities to discriminate in their favor (and against whites and Asians) in order to choose student bodies that look more like America than they did in 1950 or 1960?

In 1978, in University of California Regents vs. Bakke, four Justices said yes, four said no, and the late Justice Lewis F. Powell, Jr. tried to split the difference. In a tie-breaking opinion joined by no other Justice, Powell wrote that universities may consider an applicant’s minority race as a "plus" in the interest of admitting a "diverse student body" and thereby enriching the educations of all students. But he also ruled that the Constitution bars "focus[ing] solely on ethnic diversity"; he cautioned that race should come into play only as one of many factors-such as "the geographic region of a farm boy from Idaho"-that "may tip the balance" in choosing among closely matched applicants; he struck down a state medical school’s preferential admissions system; and he ordered admission of the white plaintiff, Allan Bakke.

The result, notwithstanding Powell’s cautions, has been to perpetuate systematic racial double standards in admissions at virtually all of the nation’s most selective universities. Most routinely admit black and Hispanic students whose grades and test scores would have meant rejection had they been white or Asian, while turning down many whites and Asians whose grades and scores would almost surely have won them admission had they been black. Powell gave the educational establishment’s social engineers an inch, and they took a mile.

Another result has been lawsuits by disappointed white applicants, who have won rulings by a federal appeals court against the University of Texas Law School in 1996 and by U.S. district judges against the University of Georgia on July 24 and the University of Michigan Law School on March 27. Meanwhile, two courts issued conflicting rulings: Another U.S. district judge rejected the key claim in a similar lawsuit against the University of Michigan’s undergraduate school on Dec. 13, and a federal appeals court awarded a partial victory to the University of Washington Law School on Dec. 4.

The white plaintiffs in the latter case have already sought Supreme Court review. The University of Texas is about to seek review in a case related to the 1996 decision. And the two Michigan cases, now on appeal, seem likely to reach the Court by next year.

So how should they rule? And what should the Bush Administration-which would like to finesse the politically explosive racial-preference debate but may be forced by events to take a stand-ask them to rule? The choices are daunting.

On the one hand, reaffirming Bakke would ratify the status quo. Such a result would probably entrench the pervasive use of racial preferences for decades to come. I don’t think that’s what the quintessentially moderate Justice Powell had in mind when he wrote Bakke. He wanted a light, race-conscious finger on the scales-not a big, blatant thumb.

On the other hand, overruling Bakke could "produce something close to de facto resegregation of most elite universities." I wrote that in 1996, but I no longer believe it. Not after seeing the determination and resourcefulness that universities and politicians have shown-both in Texas (since the 1996 decision) and in California (where the voters have outlawed racial preferences)-in finding ways to recruit and admit substantial numbers of well-qualified black and Hispanic applicants without overt racial preferences.

The University of California’s nine campuses, for example, collectively admitted more black and Hispanic applicants this year than in 1997, the last year they used overt racial preferences. The impact of the preference ban has been far greater at UCLA and at Berkeley, where 293 blacks and 963 Hispanics were admitted in 2001, down from 515 and 1,204 in 1997-and greater still at the most selective graduate schools. But these declines would be smaller if UC’s competitors were also barred from using racial preferences.

The Texas and California experiences tempt me to flirt with a paradoxical conclusion: Maybe the best way to preserve the spirit of Powell’s opinion in Bakke would be to reject its letter by flatly banning racial preferences and ruling that the laudable end of diversity (racial and otherwise) may be pursued only by less-toxic and -divisive means.

Such means could include expanding the pool of minority applicants by intensive recruitment and outreach programs, and by reaching down into mostly black and Hispanic high schools (as some UC campuses have done). Other ways could include mentoring these high schools’ most promising students; ending the preference for alumni children, which "perpetuates past imbalances and has no connection to any measure of `merit,’ " as Judge Friedman noted; and giving breaks to especially promising applicants from underprivileged backgrounds. In Texas, for example, a 1997 law guaranteeing spots at the university’s flagship campus in Austin to the top 10 percent of every high school class is both merit selection and race-blind affirmative action: It rewards the hard work, grit, and talent of the best students at the weakest and poorest schools, in which white, Asian, and (disproportionately) black and Hispanic students alike have been stuck by accidents of birth.

Would universities also find ways to keep choosing black and Hispanic applicants over better-qualified (and in many cases less-affluent) Asians and whites? No doubt they would, at least in close calls such as those Justice Powell had in mind. University bureaucrats will move to more-subjective admissions criteria if necessary to maintain integrated student bodies. And courts are unlikely to second-guess admissions officers who swear-sincerely or otherwise-that the reason they took a black candidate with a B+ average and 1100 SAT score instead of an Asian with an A average and 1200 SAT score was the superior quality of the black student’s essay, interview, or struggles against adversity.

Would that be a racial preference? Only a mind reader could know for sure-although a good judge would become increasingly suspicious as the gap between the grades and SAT scores of the admitted and rejected applicants became larger.

The prospect of evasion does not mean that a ban on race-based admissions would be a futile exercise, any more than the continued, covert reliance by prosecutors and defense lawyers upon racial stereotypes in choosing jurors negates the value of the Court’s 1986 ban on race-based peremptory strikes. Driving preferences underground would at least end the use of double standards as extreme as many in use today. How extreme is that?

• Judge Friedman found that the Michigan Law School places "a great deal of weight" on race, in a process "practically indistinguishable from a quota system." In 1995, for example, it admitted 91 percent (20 of 22) of the blacks and only 6 percent (21 of 343) of the whites with undergraduate GPAs of 2.75-3.74 and LSAT scores of 161-163. The law school’s own expert witness testified that "underrepresented minority" admissions last year would have plunged from 170 to 46 if a race-blind process had been used.

• Michigan’s undergraduate school currently awards all members of the preferred races-poor, middle-class, and rich alike-a 20-point bonus in its "selection index." The difference between an A and a B average is also 20 points; the difference between the highest and lowest possible SAT/ACT scores is only 12 points; outstanding "leadership and service" get 5 points; the maximum alumni-child bonus is 4 points; and an outstanding essay is worth 3 points.

• Before it was sued, the UT Law School pushed to make each entering class 10 percent Mexican-American and 5 percent black by granting "presumptive admit" status to all those scoring above 188 on a composite index ranking undergraduate GPAs and LSAT scores, while rejecting almost all whites scoring below 193. The school color-coded applications by race, and a "minority subcommittee" ran a special admissions program for the preferred groups.

• The gap between mean white and black SAT scores among freshmen in 1992 (the most recent year for which I have found data) was 150 at Princeton, Brown, and the University of Pennsylvania, 241 at the University of Virginia, and 288 at Berkeley.

Such are the fruits of Bakke, despite Powell’s warning that the Constitution bars "preferring members of any one group for no reason other than race or ethnic origin." There must be a better way.