During the Supreme Court's private conference on the 1978 Bakke case, Justice John Paul Stevens said that preferences "might be acceptable as a temporary measure but not a permanent solution." According to John C. Jeffries's 1994 biography of Justice Lewis F. Powell Jr., "Powell agreed. The problem was one of transition to a color-blind society. Perhaps, Stevens added, blacks would not need these programs much longer, but at this point Justice (Thurgood) Marshall broke in to say that it would be another hundred years. This remark left Powell speechless.... He recoiled from the prospect of generation upon generation of racial quotas."
Powell ended up tipping the balance in Bakke. Four justices (including Stevens) would have struck down all racial preferences in state university admissions. Four others (including Marshall) would have upheld almost all racial preferences. Powell, writing for himself alone, struck down the racial "quota" that was before the Court and held that the Constitution forbids "preferring members of any one group for no reason other than race or ethnic origin." But, to promote a diversity of viewpoints on campuses, he also expressed approval of using an individual applicant's minority-race status as one of several "plus" factors.
Powell might be chagrined at what has been wrought in the name of his "diversity" principle. As detailed in my last column, a pervasive regime of racial preferences in admissions has taken hold at virtually every selective university in the country (except where such preferences are banned by law), with no end in sight.
If the Supreme Court upholds the very large preferences at the University of Michigan and its law school in two pending cases, it will probably perpetuate governmental use of racial preferences as a permanent feature of the American landscape, not only in university admissions but also in faculty hiring and promotions, elementary and secondary education and federal, state and local government employment and contracting.
For a generation, racial preferences have been advertised as a temporary and transitional "affirmative-action" corrective for past discrimination. But there is nothing temporary about elite universities' plans to continue their systematic discrimination against whites and Asians. Their rationale is not to remedy past discrimination, but simply to enroll as many applicants from the preferred races as the diversity bureaucrats say they need for a "critical mass." No university has pledged that there will ever be an end point.
How could this happen, when (polls show) the vast majority of Americans of all races oppose racial preferences? It is happening because for most Americans, preferences are a matter of peripheral concern, while powerful special interests -- black and Hispanic leaders, liberal activists and their media allies -- demand preferences with great intensity. These forces are gaining strength as Hispanic immigrants and their children become an ever-larger percentage of the electorate -- and as Hispanics reap an ever-larger share of the racial preferences that were originally devised as a temporary remedy for the descendants of slaves.
In addition, many Americans' distaste for racial preferences is tempered by fear that a ban might lead to de facto resegregation of our society -- a drift back toward the bad old days in which whites (and, now, Asians) would monopolize the best jobs, the most important leadership posts and almost all of the seats at the best universities. Nobody I know wants that.
But it has become clear that this is not what happens when overt racial preferences in admissions are banned. They have been banned -- by judicial decision, statewide referendum or administrative action -- in California and Texas since 1996 and more recently in Florida, Georgia, Louisiana, Mississippi and Washington state. Although minority enrollments have been lower than they might otherwise be, no university in any of these places has been "resegregated."
After a sharp initial drop, for example, 14 percent of the newly enrolled students at the University of Texas's flagship Austin campus in 2002 were Hispanic and 3 percent were black, compared with 14 percent and 4 percent in 1996, the last year of overt racial preferences. At the University of California's eight campuses, the proportion of admitted black, Hispanic and American Indian students reached 19 percent in 2002, just above the 18.8 percent in 1997, the last year of overt preferences. Florida has experienced some increases, and no large drops, in the number of minority students entering its public universities and their graduate and professional schools.
Black and Hispanic enrollments are still substantially down at the two most prestigious undergraduate campuses in California and law schools in California and Texas. They are on their way up, however, and would be larger but for intense competition for the best minority students from other prestigious law schools that still use racial preferences in both admissions and financial aid.
Should we nonetheless keep overt racial preferences, as I wondered last week, because some of the alternative stratagems adopted by California, Florida and Texas to promote racial diversity have degraded academic standards? These stratagems include guaranteeing admission to the top students at even the worst inner-city schools, an approach touted by President Bush, giving less weight to test scores and "holistic" criteria that allow for covert racial preferences, such as invitations for applicants to describe any discrimination or social disadvantage of which they have been victims.
It's an inescapable reality that no matter what the Court does about racial preferences, black and Hispanic legislative caucuses and university administrators will try to lower academic standards in order to admit minority students with sub-par academic credentials. But I've seen no proof that the Texas top-10-percent law and similar provisions in California and Florida have lowered standards much (if any) more than racial preferences had done already. Most students admitted under the Texas law, for example, get better grades than classmates with higher SAT scores.
In addition, we should be skeptical of preference mavens who used to dismiss as inconsequential the large gaps by which the average SAT scores and other academic credentials of preferentially admitted black students trail those of their classmates, but who now say that the top students at the worst schools are incapable of doing college work.
Whatever the effect on academic standards, the top-of-the-class approach endorsed by Bush admits many more underprivileged black and Hispanic students than do overt racial preferences; the latter go mainly to more-prosperous students with so-so academic records at better schools, many of whom are children of the same black and Hispanic leaders who champion preferences and revile Bush. Indeed, by distracting attention and political energy from the real educational crisis in America -- the disastrous condition of inner-city schools -- the clamor for preferences for the tiny fraction of black and Hispanic children who could survive academically at elite universities may actually aggravate that crisis.
What should the Supreme Court do? Clearly, it should strike down the Michigan preferences, which are so egregious as to deserve the "quota" label and thus to violate Bakke. The hard question is whether the justices should also ban all racial preferences in admissions by holding that diversity -- while highly desirable when achieved through race-neutral means -- is not the kind of compelling governmental interest that can justify overt racial preferences.
I think that the Court should do that, with two qualifications. First, it should allow Michigan and other universities two or three years, perhaps longer, to phase out racial preferences and devise alternatives. Second, the Court should leave open the possibility of allowing more time for the nation's service academies -- which argue persuasively that a plunge in the number of black officers would hurt morale in the disproportionately black armed forces -- and any other institutions that can make similarly extraordinary showings of need. But even those institutions should get more phaseout time only if they can prove that that they would otherwise see a dramatic drop in black and Hispanic admissions that could not be averted by race-neutral means.
If, on the other hand, the Court blesses diversity-based racial preferences, universities and other affirmative-action bureaucracies will make cosmetic changes to distinguish any aspects of the Michigan process that the Court finds excessive, as they did after Bakke, while continuing their own racial-preference regimes in perpetuity. More and more, we will be a country in which opportunities are apportioned by race-based formulas. And we might as well forget about Martin Luther King Jr.'s dream of an America in which people are judged "not by the color of their skin but by the content of their character."