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Racial Preferences Versus Individual Rights By: John H. Hinderaker & Scott Johnson
FrontPageMagazine.com | Tuesday, October 20, 1998

IN HIS FAMOUS SPEECH accepting the Republican nomination for the Senate in 1858, Abraham Lincoln asserted that the institution of slavery had made the United States a house divided against itself. Slavery would either be eliminated or become lawful nationwide, Lincoln predicted, provocatively quoting scriptural authority to the effect that "a house divided against itself cannot stand."

Lincoln’s Democratic opponent, Stephen Douglas, criticized Lincoln’s hostility to slavery and rejected his "house divided" analysis on the ground that it was disrespectful of the fundamental principle of diversity. "Our Government was formed on the principle of diversity in the local institutions and laws," Douglas said. He accused Lincoln of preaching a "doctrine of uniformity" and argued that "uniformity in the local laws and institutions of the different States is neither possible or desirable."

If this first debate ended in tragedy, the contemporary debate over racial preferences has the air of history repeating itself as farce. Like the debate over slavery, it raises a question of first principles with respect to the meaning of the human equality that constitutes the moral foundation of our country and our freedom. Apparently without the slightest awareness of doing so, today’s advocates of racial preferences, acting in the name of "diversity," regularly advance arguments that are directly descended from those made by Stephen Douglas—and later by the chief theoretician of the Confederacy, John Calhoun. In his 1858 speech, Lincoln also observed, "If we could first know where we are, and whither we are tending, we could better judge what to do and how to do it." In the spirit of Abraham Lincoln, it is worth asking where we are with respect to the policy of sorting students by race that has prevailed in our universities for the past twenty years so that we may better know what to do and how to do it.

The policy called "affirmative action" was originally promulgated by executive order and bureaucratic decrees in the 1960s and early 1970s. It now requires the patient industry of an archaeologist to provide an adequate account of the evolution of that policy. But this much is clear: in the university setting, "affirmative action" is an extremely misleading euphemism for the systematic racial preferences in admissions and financial aid that has become the status quo. Students have been routinely subjected to significantly different treatment depending on whether or not they are members—or describe themselves as members—of designated minority groups based on skin color, ethnic membership, and gender. It is difficult to overstate the pervasiveness of these policies of racial preference or the degree to which they have divided our house against itself.

The University of Minnesota presents a typical example. In 1990, administrators set out to increase the number of "students of color" to ten percent of the student body on each of the university’s five campuses. Given the dearth of "students of color" in four of the areas served by the university’s five campuses, this state institution, funded by Minnesota taxpayers, was forced to provide financial incentives for "students of color" from outside the state to meet its self-imposed quota.

At the urging of university administrators, the Regents adopted a program under which non-Minnesota "students of color" who met a minimum academic requirement were automatically granted the benefit of substantially discounted tuition otherwise available only to resident Minnesotans. (The tuition differential between Minnesotans and non-Minnesotans amounts to roughly $4,000 to $8,000 per student per year, depending on the campus or program in which the student is enrolled.) By 1993 this policy accounted for the largest share by far of scholarship aid awarded by the university. Over the years since the policy was adopted, the university has discriminated against thousands of students at the cost of millions of dollars solely on the basis of the color of their skin or their ethnic origin.

Meanwhile the University of Minnesota: the law school faculty voted in 1978 to dedicate 50 percent of the law school’s available scholarship funds to affirmative-action minority students. This policy has now been in effect for twenty years at a similar economic and psychological cost.

These two University of Minnesota policies are blatantly illegal. Indeed, revelations about the discounted tuition policy last September led administrators to transform it into a less blatantly illegal program as of spring 1998. The law-school policy has never to our knowledge been formally disclosed to the public. In neither case has the university ever accounted, or apologized, for the illegality of the policy and its human toll.

At the University of Michigan, Professor Carl Cohen’s Freedom of Information Act request disclosed a racially bifurcated admissions system for applicants to the undergraduate liberal-arts program. Under this system, applicants are screened on the basis of their grade-point average and test scores; radically lower admissions standards are applied to "underrepresented or other disadvantaged" students than to "majority" students.

Until recently, as lawsuits and compelled disclosure have unlocked relevant information, the regime of racial preferences has been carefully guarded by secrecy and denial. Typical was University of Michigan Law School Dean Dennis Shields’s statement regarding the law school’s admissions program following revelations of systematic racial preferences: "We do not have a separate review of files nor do we have a different standard for minority applicants." As Jonathan Chait, a supporter of racial preferences in university admissions, commented in The New Republic last December: "Instead of waging a philosophical defense of racial preferences, or coming clean, or at least thinking up a different lie, Michigan’s administration is simply wrapping its old lie in a bizarre point of semantics."

As Chait’s comment suggests, it is the public exposure of the regime of racial preferences at public universities that now brings forth the need for "a philosophical defense of racial preferences." But such a philosophical defense has not and cannot advance much further than Supreme Court Justice Harry Blackmun’s famous Orwellian affirmation in 1978 in Regents of the University of California v. Bakke, a case that legitimated a bald racial admissions quota: "To get beyond racism, we must first take account of race." And taking account of race, of course, means treating some students differently from other students on the basis of the color of their skin—in other words, practicing racial discrimination.

Parlaying on Justice Blackmun’s logic, a sociology professor at an Ann Arbor rally supporting racial preferences at the University of Michigan was quoted as condemning his opponents as "color-blind racists." All it will take to close this particular Orwellian circle is a student demonstration expressing support of racial preferences by chanting "Freedom is slavery."

Contrary to Justice Blackmun’s statement, it should be clear that no system that requires racial classifications can result in a decline in racialist thinking. Indeed, racial consciousness is exacerbated by racial preferences and quotas precisely because they promote the poisonous idea that an individual’s status and interest are determined by race. Preferential programs are premised on the notion that rights belong to racial and ethnic groups, that individual rights are conditioned by racial or ethnic status. This idea recapitulates the morality of a caste system based on race and ethnicity that is wholly alien to the principles of the American system.

The impetus for racial preferences is the ardent desire to engineer equal outcomes measured across racial and ethnic groups. Proponents of preferences assume that absent discrimination, success would be randomly distributed among the members of racial and ethnic groups. According to this point of view, the existence of unequal results across racial and ethnic groups is by itself evidence of injustice; to achieve justice is to achieve equal results.

This assertion is both obviously untrue and profoundly destructive of freedom based on the protection of individual rights through the rule of law. When people are free, they never sort themselves out with exact racial proportionality in their efforts, achievements, decisions about whether to go to college, or what jobs to choose.

By its very nature, equal opportunity produces unequal results. Unequal outcomes are as common between minority groups (including the numerous ethnic minorities that comprise the white "majority") as they are between individuals. They have no necessary connection to invidious racial discrimination.

To take only one prominent example, consider the case of Asian Americans. Native-born Asian Americans graduate from college at roughly twice the rate of the population at large and have average family incomes that substantially exceed those of white non-Hispanic Americans. No one can plausibly argue that this disparity in graduation rates and average incomes is a function of discrimination.

Efforts to produce equal outcomes among racial and ethnic groups therefore inevitably lead to the imposition of coercive measures by bureaucracies or courts. Equal outcomes among groups cannot and will not occur without coercion. Recognition of group rights as a means of achieving equal outcomes requires the abrogation of individual rights. Sixth Circuit Judge Damon Keith unwittingly (and chillingly) revealed the erosion of fundamental American principles under the impact of racial preferences when he wrote in a 1984 law review article: "Despite the progress of the last two decades, an entrenched belief in the sanctity of individual rights remains. Our courts have time and again explicitly or implicitly shied away from ‘intruding’ too far into the rights of private individuals." The implication is that individual rights are the prejudice of reactionaries and the enemy of progress. Hear the echo of the heart of Stephen Douglas’s argument—the black man had no rights that the white man was bound to respect.

Despite the purported sophistication of the arguments advanced on behalf of racial preferences, these arguments are neither progressive nor compelling. It is the idea of equal treatment under the law without regard to race that represents true progress and that for 125 years constituted the unvarying object of antislavery crusaders and civil-rights advocates. The most distinctive legal claim of the civil-rights tradition has been the principle of nondiscrimination, above all a claim for equal treatment, especially by the government, without regard to race. The ideals of a color-blind Constitution and of color-blind law have deep historic roots in the first principle of freedom—the proposition, as Lincoln called it—that all men are created equal, and that this equality forms the basis of unalienable individual rights.

It was in recognition of this principle that James Madison, for example, condemned the injustice of slavery in America at the Constitutional Convention: "We have seen the mere distinction of color made in the most enlightened period of time, a ground of the most oppressive dominion ever exercised by man over man." It was in recognition of this principle that all eight Northern states, where slavery was universally legal in 1776, themselves abolished slavery within their borders either gradually or immediately following the Declaration of Independence.

From the principle of equality was soon derived the intimately related notion of nondiscrimination on the basis of race. Partly as a result of the abolition of slavery in the Northern states, there were free African American citizens living in Boston in 1847. In the mid-nineteenth century, at a time when our major civil-rights problem was still slavery, black and white civil-rights activists brought a lawsuit, Roberts v. City of Boston, demanding that the system of segregated schools in Boston be declared unconstitutional on the basis of the Massachusetts constitution’s provision that "All men are born free and equal." (Incidentally, the lawsuit was brought on behalf of a young woman, four-year-old Sarah Roberts.) Charles Sumner, the great Massachusetts abolitionist, argued that the principle of equality that invalidated slavery likewise invalidated "any institution founded on inequality or caste."

It was to vindicate the principle that all men are created equal that we fought a bloody civil war; ratified the Thirteenth Amendment to abolish slavery and the Fourteenth Amendment to extend "the equal protection of the laws" to all persons, or rather to each person individually.

And it was in the spirit of the same principle that, beginning in the 1930s, NAACP Legal Defense Fund lawyers embarked upon a litigation strategy designed to end segregation in public schools. Thurgood Marshall successfully argued in 1947 that the University of Oklahoma Law School could not deny admission to a black applicant because "classifications and distinctions based on race or color have no moral or legal validity in our society." Two years later, Marshall argued that "racial criteria are irrational, irrelevant, odious to our way of life, and specifically proscribed under the Fourteenth Amendment." This was also the argument that Marshall successfully urged in 1954 in the climactic case of Brown v. Board of Education: "that the Constitution is color-blind is our dedicated belief."

The Civil Rights Act of 1964 was the culmination of this long struggle to recognize and codify the principle of nondiscrimination and to fulfill the promise of "equal protection of the laws" embodied in the Fourteenth Amendment. The scope of the act was extensive: Title II prohibited discrimination in public accommodations; Title VI outlawed discrimination in federally funded programs (including colleges and universities); and Title VII prohibited discrimination in employment. The act made it illegal to discriminate against "any individual" on the basis of race, color, ethnicity, or religion. As Professor Edward Erler of California State University has commented, "No more powerful expression of a commitment to equal opportunity can be found in the annals of modern legislation anywhere in the world."

The history of the color-blind ideal in our law is the proper backdrop against which to view the issue of racial preferences in public universities. In the past ten years, constitutional law governing racial preferences has evolved in the direction of the color-blind mandate of the equal protection clause. In Wygant v. Jackson Board of Education, City of Richmond v. Croson, and Adarand Constructors v. Pena, a closely divided Supreme Court invalidated the government’s use of racial preferences in contexts other than university admissions. In these non-university cases, the Court held that the government’s use of racial preferences was constitutionally prohibited unless it was remedial and there was a substantial basis in evidence for concluding that the particular use of racial preferences was narrowly tailored to eliminate the present consequences of identified past racial discrimination for which the particular government entity itself was responsible.

Most recently, in the Adarand case, the Court emphasized "the basic principle that the Fifth and Fourteenth Amendments to the Constitution protect persons, not groups. It follows from that principle that all governmental action based on race . . . should be subjected to detailed judicial inquiry to ensure that the personal right to equal protection of the laws has not been infringed. . . . ‘A free people whose institutions are founded upon the doctrine of equality’ . . . should tolerate no retreat from the principle that government may treat people differently because of their race only for the most compelling reasons." To which Justice Antonin Scalia eloquently added, "In the eyes of government, we are just one race here. It is American."

These Supreme Court cases would invalidate virtually every program of racial preferences in public-university admissions. The Fifth Circuit, for example, following the constitutional analysis set out in these cases, specifically held in the Hopwood case that the University of Texas Law School’s preferential admissions program for African Americans and Mexican Americans was unconstitutional. The law school had employed a segregated system of evaluation, putting black and Hispanic candidates in separate pools in which they competed only within their own racial or ethnic pool. The Fifth Circuit held that racial diversity in higher education does not by itself constitute a compelling governmental interest. Rather, the only permissible use of racial criteria is strictly remedial. The Fifth Circuit concluded that the law school could not use race as a factor in deciding which applicants to admit, although public universities may reasonably consider a host of factors—some of which may be statistically correlated with race—in making admissions decisions.

The undergraduate program at issue in the University of Michigan lawsuit involves formal written policies that explicitly and systematically discriminate on the basis of race in favor of "American Indians, Black/African Americans, and Hispanic/Latin Americans" for no apparent reason other than that they are deemed to constitute "underrepresented minorities." Such race-based systems designed to advance racial proportionality cannot pass muster under any recognized constitutional doctrine. In due course the University of Michigan will accordingly lose this lawsuit.

Moreover, if Michigan’s racial preferences have worked in the way they have at other universities, they have done real harm not only to whites, but also to many of their intended beneficiaries. As social scientist Thomas Sowell has observed for the past twenty-five years, racially preferential admissions programs result in systematic mismatching of students and the institutions they attend, thus leading to dropout rates from 50 to 100 percent higher than those for students admitted without regard to race. On the Twin Cities campus of the University of Minnesota, for example, only 20 percent of minority students entering in 1990 graduated within five years, compared to a 37 percent five-year graduation rate for white students.

The Regents of the University of California abolished racial preferences as a matter of policy in June 1995. California voters followed their lead in November 1996 when they adopted Proposition 209, which prohibits all governmental racial preferences. Abolition of preferences in the University of California system will prevent academic mismatching of students and campuses within the system. Despite much talk about the withdrawal of minority students, Stephan and Abigail Thernstrom did an analysis of data from all the campuses and projected that the number of black and Hispanic students who will actually graduate under the current nondiscriminatory admissions policies will increase by nineteen percent and seventeen percent, respectively.

Sensational news accounts of the allegedly catastrophic effects of color-blind policies focused on admissions data for only two of the eight campuses: Berkeley and UCLA. University officials did not see fit to release the system-wide admissions numbers until two days after they released the Berkeley and UCLA numbers that generated the disaster stories they obviously desired.

Taking all eight campuses into account, admission of black students was down 17.6 percent (not 57 percent, as reported in the news accounts based on data for Berkeley and UCLA) and admission of Hispanic students was down 6.9 percent (not 40 percent, as reported in the news accounts based on Berkeley and UCLA data). And the actual numbers might actually be even better if one takes into account the fact that 15 percent of admitted students declined to identify themselves by race now that doing so is neither beneficial nor required. It seems likely that at least some of these students are black or Hispanic.

Further, these statistics must be viewed in the context of the extraordinary performance of Asian Americans, who constitute only one-ninth of the California population but account for at least one-third of the students admitted to the University of California system for the fall of 1998. Their success apparently has deprived them of their former status as "students of color" in accounts decrying the consequences of color-blind admissions.

More than the racial composition of a given class of university students is at stake. Those who believe in the ability of black and other minority students must concede that these figures are bound to improve over time. What is at stake is whether our great public universities are to treat the students whom they exist to serve as fellow citizens with equal rights under law, or to treat them differently based on their membership in specified racial and ethnic groups. Like the struggle to dismantle segregation in the South forty years ago, the struggle to eliminate racial preferences on university campuses implicates both the rule of law and the foundation of the law.

Discrimination on the basis of race is wrong. The Civil Rights Act of 1964 codified this moral understanding and fulfilled the promise of the Fourteenth Amendment’s guarantee of "the equal protection of the laws" as well as the recognition in the Declaration of Independence of our human equality. As Abraham Lincoln wrote in response to prominent Democrats who urged him to rescind the Emancipation Proclamation, "The promise, being made, must be kept."

John Hinderaker and Scott Johnson are Minneapolis attorneys who frequently write as a team for local and national publications.

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