The American people have long been of two minds concerning the concept of affirmative action. On the one hand, the broad notion of “outreach” to assure all people have an equal chance to pursue public and private opportunity enjoys wide support, but the public has long opposed racial preferences in overwhelming numbers. The legal brief recently filed by the Bush administration in the University of Michigan affirmative action case stakes out a middle ground, which should not be surprising given the natural tendency of politicians to attempt to please as many people as possible. However, while the brief may function well as a policy statement, it is clearly unworkable as a matter of law.
There are many reasons the Supreme Court of the United States agrees to take a case for review, but the most common one is to settle a legal dispute between two or more lower circuits. In this instance, the San Francisco-based 9th US Circuit Court of Appeals has ruled that “diversity” is so compellingly important in the educational experience of college students, that admissions committees can grant preferences to black and Hispanic students. The New Orleans-based 5th Circuit in Texas, on the other hand, has come to the opposite conclusion. So when University of Michigan case went up to the high court for review a few months ago, it wasn’t a big surprise the Justices accepted it. After all, constitutional guarantee of equal protection under the law should mean the same thing in every part of the nation.
Without taking a position on the central question of whether the pursuit of racial diversity can ever be a sufficiently compelling state interest to justify racial preferences, Bush's brief argues instead that the Michigan program was not “narrowly tailored” to achieve this goal. The first argument the brief makes is that all race-neutral measures must be tried before resorting to racial preferences. Secondly, it contends the preference Michigan provides is too much like a quota and that it is too large and mechanized.
The idea that all facially race-neutral measures must first be attempted is a doctrine imported from cases involving remedial action to integrate historically segregated institutions. Michigan does not seek to justify its racial preference scheme on this basis, as it has not discriminated against minorities in recent history.
Perhaps the most serious problem with transferring this remedial concept to the Michigan diversity- context is that there is no way to define whether race-neutral measures have achieved sufficient racial diversity without establishing a quota. While Bush's brief correctly notes that the Texas plan which admits the top ten percent of all high school graduates into all state universities has restored undergraduate black and Hispanic undergraduate enrollment to pre-Hopwood levels, the numbers are still well short of the percent of blacks and Hispanics in the population.
The University of Michigan Law School points out in its brief that, even if it were to admit applicants through a lottery, due to the relatively low number of black applicants, it still would not have what it defines as a "critical mass" of black students, let alone black enrollment proportionate with the black population of the state. In addition to the impossibility of precisely defining what threshold of racial diversity qualifies race-neutral measures as successful, it is similarly impossible to determine how far such measures should go. For example, if Michigan Law announced they were admitting all students using a lottery or even if they dramatically lowered their admissions standards and conducted a lottery among all of those who met minimal requirements, perhaps many more blacks, who now conclude they have no chance of being accepted, would be persuaded to apply.
There is also a constitutional problem with this notion of attempting all facially race-neutral measures before adopting explicit racial preferences to achieve racial diversity. Since the days of Jim Crow laws, the Supreme Court has invalidated thinly veiled facially race-neutral measures, such as a poll tax, that are enacted with a racially discriminatory intention and, in fact, do have a specific impact on certain racial groups. Decades ago many Ivy League universities capped Jewish enrollment in order to promote religious diversity because, based on merit alone, Jews would more than exceed their numbers in the population, crowding out students of other religions. It would be unimaginable today to suggest that universities with such a policy should have been told that you can ultimately impose such explicit caps on Jews, but you must first try all facially neutral measures, such as adding or subtracting points based on an applicant's zip code to correlate with the percent of Jews in that zip code.
While there are many possible purposes of Texas' top ten percent plan, such as enhancing geographical and socioeconomic diversity, the legislative record is quite clear that the primary goal was to benefit blacks and Hispanics at the expense of whites and Asians and, indeed, that has been the effect. There was no suggestion that the plan represented a better conception of merit than the existing system of looking at an applicant's other credentials besides class rank, which is obviously not alone a reliable indicator due to the vast difference in high schools' competitiveness. In fact, UT scrapped a nearly identical top- ten percent plan in the late 1960s because university administrators said it wasn’t an effective admissions policy.
Bush's brief also argues the Michigan plan is not narrowly tailored because it is a de facto quota. It is true that Michigan can calculate in advance how many points it needs to add for being black or Hispanic to get very close to the minimum amount of such students it seeks. However, modern statistics allows every university to accurately assess the racial impact of various admissions policies. Indeed, such an evaluation was conducted before the Texas Legislature passed the top ten percent rule.
Thus, Bush's brief offers no more legal certainty than the muddled law today, which is based on an opinion joined only by one Justice, Lewis Powell, in the high court’s 1978 Bakke decision. While Powell proscribed rigid racial quotas, he stated colleges should be able to use race as a "plus factor" to achieve diversity. The result at Michigan and campuses throughout the country has been enormous preferences and so-called "targets" and "goals."
As an unaccountable institution without a means to enforce its decisions, the Court scrupulously conserves its own political capital by sparingly issuing decisions that profoundly change society. However, the flaws in Bush's brief and Powell's opinion leave the Court no choice but to provide a basic level of certainty in the law by addressing the fundamental question of whether the pursuit of racial diversity alone justifies the use of racial preferences.
Ultimately, the Court must recognize that America's constitutional promise of a colorblind society is simply too important and urgent to be dependent on terms or concepts that cannot be precisely defined, are meaningless in degree, and cannot be enforced. Moreover, the fundamental question of whether the pursuit of racial diversity can ever justify preferences must be addressed in order to bridge the split between the lower courts, avoid many more years of litigation over whether a particular preference system in effect operates as a quota, and assure that the constitutional guarantee of equal protection has one clear meaning that applies to all Americans.
If the Court rules that racial diversity is not a compelling interest, it will be impossible to reconcile race-neutrality with a racial balance proportionate to the population at every institution, especially elite graduate schools, unless academic standards are almost entirely discarded. Of course, this situation will improve over time, especially if vouchers and other efforts to improve K-12 education for disadvantaged children are adopted.
While it reaches the correct result in the case at hand, the Bush brief pretends that racial proportionality in all institutions can be achieved overnight without racial preferences. Bush simply followed the natural political impulse, which is to assert that we can have our cake and eat it
too. However, in order to fulfill its duty to provide clear instruction to America's colleges as well as lower courts, the Supreme Court must now eschew the murky middle ground and decide whether to amend the clear constitutional right to equal treatment under the law by adding an exception for racial
As civil rights lawyer Marc Levin wrote recently in the National Law Journal, "To fulfill the promise of the equal protection clause and instill unity in a nation that includes an ever-growing number of people of more than one race and ethnicity, the Supreme Court must finally declare that the pursuit of `diversity’ must not entail preferring one race or ethnicity over another."
Edward Blum is Director of Legal Affairs for the American Civil Rights Institute (www.acri.org) and can be reached at firstname.lastname@example.org