Analysis  

A License to Discriminate

by Robert A. Levy

If its June 23 rulings about the University of Michigan's affirmative action programs are any indication, the Supreme Court thinks "equal protection" means "protection from obvious violations of the Constitution," and that discrimination is just fine, provided you disguise it.

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When the Constitution says that no state may "deny to any person within its jurisdiction the equal protection of the laws," it apparently means that Michigan can discriminate in favor of African-Americans, Hispanics and Native-Americans who would like to enroll in the state's taxpayer-funded university. That's how the U.S. Supreme Court reads the equal protection clause of the 14th Amendment — with the evident approval of President Bush, who declared on June 23, immediately after the court's long-awaited rulings on two Michigan affirmative action cases, that "Today's decisions seek a careful balance between the goal of campus diversity and the fundamental principle of equal treatment under the law."

Translation: under the guise of seeking a more "diverse" educational climate, the Constitution may be treated as so much tissue paper. Essentially, that's the pronouncement from the nation's highest court and the nation's chief executive. As for the legislative branch — or, more precisely, two legislators who are also Democratic candidates for president — it mattered little which way the court ruled. The day before the Michigan decisions, in a debate sponsored by Jesse Jackson's Rainbow/PUSH Coalition, Reps. Dick Gephardt of Missouri and Dennis Kucinich of Ohio said they'd simply issue executive orders supporting affirmative action if the high court stuck down the Michigan policy. There you have it: return of the king.

If a public university wants to implement racial preferences in its admissions policy, the court gave its blessing, then added a useful tip: obfuscate; don't let on that slots are reserved for minorities. A separate admissions track for Hispanics won't pass muster. Neither will a quota for African-Americans, nor a numerical scheme for Native-Americans that looks like a quota. That's why the court, in a 6Ð3 opinion written by Chief Justice William H. Rehnquist, invalidated the program adopted by the University of Michigan College of Literature, Science, and the Arts in Gratz v. Bollinger. The college used a 150-point system with 100 points required for admission and 20 points automatically granted for minority status. "The factor of race," said the court, is "decisive" for virtually every minimally qualified applicant among the favored three minorities.

On the other hand, if a public university seeks those same ends but camouflages its intent with rhetoric suggesting a "holistic" or "highly individualized" approach centering on a "flexible assessment of applicants' talents, experiences, and potential," that ploy will survive the court's scrutiny. Thus did Justice Sandra Day O'Connor, writing for a five-member majority in Grutter v. Bollinger, uphold the University of Michigan Law School program that treats race as a mere "plus factor" and is designed to enroll a "critical mass" — ranging between 10 and 17 percent — of underrepresented minority students. Never mind testimony that applicants in certain racial and ethnic groups were "many, many (tens to hundreds) times" more likely to be admitted than non-minorities.

The good news from Justice O'Connor is that "race-conscious admissions policies must be limited in time." While non-binding, the "Court expects that 25 years from now, the use of racial preferences will no longer be necessary." That is little consolation to Americans who responded to a recent Pew survey and indicated, by an overwhelming 3-to-1 margin, their current disapproval of "giving [minorities] preferential treatment." Nor is the court's quarter-of-a-century window much solace to those who remember the past 25 years of discriminatory admissions in the aftermath of Justice Lewis F. Powell's 1978 opinion in University of California v. Bakke.

In that seminal case, the state medical school reserved 16 of 100 seats for selected minorities. Bakke, a white male, was rejected in favor of a less-qualified minority applicant. Four justices said that the university's race preferences were permissible as a remedy for past societal discrimination. Four others voted to invalidate the program on statutory grounds. Justice Powell provided the key fifth vote for invalidation; but he added, in a separate opinion not joined by any other justice — and not integral to the majority holding — that attaining a diverse student body might be important enough to justify race preferences.

Powell's position, although not technically a holding of the court, has been the foundation for many affirmative-action programs. In Gratz and Grutter, for the first time, the Supreme Court officially adopted the Powell view that diversity is a "compelling state interest." Here are the implications: The equal protection clause bans state discrimination, but the ban is not absolute; states cannot always treat everyone in exactly the same way. Still, when states discriminate on the basis of a "suspect class" like race, they are subject to "strict scrutiny" by the courts. First, the state must show that it has a compelling reason to discriminate. Second, the state's program must be "narrowly tailored" to accomplish the specified goal. That is, the program may not sweep too broadly and unduly harm non-minority applicants.

That's big news, and a major disappointment to opponents of racial preferences. The plaintiffs in the two Michigan cases did not challenge the use of race-conscious remedies to counteract proven anti-minority discrimination by the state. Nor did the plaintiffs challenge outreach efforts to communicate the university's equal opportunity and non-discrimination policies as a means of enlarging the pool of minority applicants. If a state is to be in the business of providing college education at public expense — a topic for another day — then discrimination against minorities must be redressed, and outreach programs are unobjectionable.

But the race-based preferences in Grutter are very different. There the court implicitly condoned four injustices: punishment of individuals to advance group interests; discrimination that often benefits non-victims and harms those who have done no wrong; preferences for minorities who are relatively wealthy and have endured few of life's hardships; and prejudicial treatment of other minorities and whites who may be relatively poor.

By what principled means do we decide which groups are to be advantaged? Shall we include Pacific Islanders? Laotians? Arab-Americans? What percentage minority lineage is sufficient to qualify? Jewish blood won't get you very far because Jews are already over-represented. But Franklin Rubinstein's mother is Mexican-American, so he garnered an admissions boost at a top law school. After all, said Rubinstein, "I brought the unique perspective of growing up half-Jewish and half-Mexican."

Even worse, preferential admissions will inevitably lead to one of two lamentable outcomes: either lower standards for graduation or higher dropout and flunk rates. Multiple studies have shown that less qualified applicants cannot compete unless standards are relaxed. And qualified minorities are stigmatized, tarred with the presumption that their matriculation is attributable not to their ability but to the color of their skin.

Meanwhile, college administrators will trumpet the attainment of diversity — by pigmentation, of course — though not diversity of viewpoint, the quintessential ingredient of an educational institution. Indeed, a recent poll by Luntz Research found that 84 percent of Ivy League professors voted for Al Gore in 2000, 6 percent for Ralph Nader, and 9 percent for George Bush. If colleges were really worried about diversity, they would be promoting preferential hiring of Republican professors. Don't hold your breath.

Justice O'Connor, not persuaded by those arguments, relies instead on legal briefs filed by corporate leaders who insist that "the skills needed in today's increasingly global marketplace can only be developed through exposure to widely diverse people," and military leaders who proclaim that a "racially diverse officer corps is essential to national security." Those assertions, dubious on their own terms, are irrelevant. If corporations want more minority executives, let them hire from private universities that can implement affirmative action programs without raising constitutional concerns. Or let the corporations fund scholarships for deserving minority applicants, or recruit inner-city talent.

Moreover, businesses and the military can draw from the vast majority of public universities that admit virtually all applicants. There is no reason to believe that minority graduates of those universities would not be qualified for military leadership positions. Only the elite schools have restrictive enrollment policies that might be affected by the court's affirmative-action decisions. Racial preferences, therefore, do not principally enlarge the supply of qualified minority applicants but, rather, distribute that supply in favor of the more selective schools. Even without racial preferences, minority applicants have ready access to public universities, although less access to the top few percent.

The heart of the matter, aptly stated in the legal brief filed by the Cato Institute, is this: "Preferences reflect outright racial stereotyping about how people will (or should) think or behave on account of their skin color or ethnicity. [T]hey cut against a bedrock constitutional principle that forbids government to judge individuals as members of racial or ethnic groups." Yes, favored minorities may derive some advantage from preferential treatment, but "the state's awarding of valuable opportunities on the basis of skin color or ancestry necessarily diminishes those who are not benefited and, more importantly, erodes the national fabric and commitment to equality of opportunity."

That said, the Supreme Court has spoken. Now the battleground shifts chiefly to the states. California, Florida and Washington have abolished race-conscious admissions. Three down, 47 to go.

© Copyright 2008, Liberty Foundation

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