IN THIS MONTH'S ELECTION, Washington became just the second state to abolish racial preferences. Congress is afraid to follow suit, but it may not matter, since the courts are taking an increasingly skeptical view of quotas. Last week, by a 2-1 vote, a three-judge panel of the First U.S. Circuit Court of Appeals struck a blow against the "diversity" rationale for preferences—the notion that ensuring a varied student body permits a school to discriminate on the basis of race.
The case involved 15-year-old Sarah Wessmann, who had been denied admission to the prestigious Boston Latin School, one of Boston's top public high schools, because she is white. Boston Latin had used a complicated admissions plan, developed in 1996 with the help of outside consultants and civil-rights lawyers. The school fills its first 45 seats without regard to race, evaluating applicants on the basis of an exam score and grades. But its remaining 45 seats are allocated according to a quota based on the ethnic composition of the applicant pool. The year Sarah applied, the allocation was thirteen blacks, eighteen whites, nine Asians, and five Hispanics.
The Boston Latin quota aimed to comply with the late Justice Lewis Powell's opinion in the landmark case of Regents of the University of California v. Bakke. Powell, casting a swing vote on a divided court, had suggested that "intellectual diversity" was an acceptable rationale for considering race in admissions, though "racial diversity" was not. Although no other justice joined this part of his opinion, this view has guided the educational establishment ever since.
Last May U.S. District Judge Joseph L. Tauro, a Nixon appointee, upheld Boston Latin's quota on just this basis, citing Powell's opinion in Bakke in declaring that public secondary schools have a "unique mission" to "awaken our children to . . . tolerance and understanding of divergent political, religious, and social convictions." This, in Judge Tauro's view, distinguished Boston Latin's use of racial preferences from that of employers, government agencies, or even colleges and universities.
But as the First Circuit recognized, the school's talk about the role of race in creating a heterogeneous school community was little more than a smoke screen for the school superintendent to engineer a specific racial mix of students. Even without quotas, black and Hispanic students would comprise between 15% and 20% of each entering class at Boston Latin, based solely on academic criteria. The quota seemed an effort to mimic an earlier requirement that no less than 35% of Boston Latin's incoming class be composed of black and Hispanic students, which for many years had been part of Boston's court-ordered desegregation plan. But with the Boston school system having been declared desegregated in 1987, the plan—and the requirement—lapsed.
Wessmann is the first major federal Court of Appeals decision to consider racial preferences in student admissions since 1996, when the Fifth Circuit struck down preferences at the University of Texas Law School. (My organization represented two of the plaintiffs in that case, Hopwood v. University of Texas.) At the time, the education establishment presumed that Hopwood would be swiftly overruled because it refused to acknowledge as binding law the portion of Justice Powell's opinion in Bakke that suggests that "diversity" can justify the use of racial preferences.
In reversing Judge Tauro, the First Circuit decision makes clear that Powell's opinion is of no use to today's diversity crowd. For as the appeals court discovered, the education establishment has abandoned any pretense of observing Powell's elusive distinction between intellectual and racial diversity. Judges Bruce M. Selya and Michael Boudin found that Sarah and ten other white students had been displaced by black and Hispanic students with lower composite scores, and thus ordered that Sarah be admitted.
The court majority assumed for the sake of argument that Powell's opinion in Bakke correctly described the sort of diversity that might justify racial preferences. But the judges went on to show that there was almost no sense in which the Boston Latin admissions plan complied with Powell's opinion. As Powell realized, if race is to be one element (but not determinative) of intellectual diversity, then race can be no more than a "plus" factor in assessing the contribution that a particular individual will make to the diversity of an entering class. It cannot elevate wholesale the chances of an entire ethnic group without becoming racial discrimination for its own sake.
While school systems under court-ordered desegregation plans will continue to assign students by race, Wessmann makes it clear that school officials lack the authority to assign students by race solely to achieve a desired racial mix. This will have practical significance for the many urban school districts that manipulate admission standards to prestigious magnet schools by race.
The decision also will affect those school-choice plans that are undermined by officially imposed racial balancing requirements. States such as Massachusetts permit parents to choose their children's public school only to the extent that it doesn't upset racial balance. After Wessmann, it will be difficult to impose such limits.
While the education establishment likely will continue to resist the judicial critique of diversity-based racial preferences, my organization is pressing cases in the Ninth Circuit (against the University of Washington) and the Sixth Circuit (against the University of Michigan) that raise this question. The courts will have ample opportunities to make clear that like secondary schools, colleges and universities may no longer rely on "diversity" to justify racial preferences.
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