After months of debate inside his administration, President Bush decided to split the difference on racial preferences. At issue was whether the administration would submit a legal brief stating its position as the Supreme Court considered whether it was permissible for the University of Michigan to admit black and Hispanic students under easier standards than it applies to everyone else. Bush decided to submit a brief condemning the university’s de facto quota. But the brief also said that “diversity” was a legitimate governmental goal. The university was, to be sure, required to try colorblind methods of achieving diversity. The brief offered the example of Texas’s policy of automatically admitting the top 10 percent of any high-school class in the state to a state university. This “Texas solution,” variants of which are also in place in Florida and California, increases the number of blacks and Hispanics on campus without engaging in any formal racial discrimination.
If these race-neutral methods do not “work” — that is, if they do not yield the desired numbers of blacks and Hispanics — are state universities then to be allowed to discriminate among applicants according to their race? Bush and his brief were silent on this point. The only members of his administration who spoke up on the subject were Condoleezza Rice and Colin Powell, with the former approving of discrimination when nothing else would “work” and the latter approving even the University of Michigan’s practices.
Most conservatives criticized the administration. On our back page, David Frum defends it by arguing that a nuanced brief is necessary to sway Justices Sandra Day O’Connor and Anthony Kennedy. Frum assumes that these justices are looking for a brief they find congenial. But it may be more plausible to assume that they are looking for a political signal. They want to know what position will be considered mainstream. President Bush has just sent them a signal: A conservative president does not think that he can afford to stand unambiguously for colorblindness. The odds that the justices will also fudge their position have therefore increased.
The result could be that “diversity” attains a higher legal status than it has ever had before. The Supreme Court has previously held that the only possible justification for race-conscious admissions is to remedy past discrimination. Only one justice, in one case, has said that diversity can justify racial preferences (and then only if it proves to have educational value). The former justification, while debatable, is at least limited. Discrimination to achieve diversity, on the other hand, is pretty close to being discrimination for its own sake — and discrimination forever. If the administration had decided what to say about this case based on the legal merits, its brief would have looked very different. It would have said that the Civil Rights Act of 1964 forbids state universities from engaging in racial discrimination, whether to achieve diversity or for some other goal, whether as the first resort or the last.
As a policy matter, the Texas solution is no solution at all. It undermines merit more than racial preferences do. At least a preferential policy allowed colleges to apply meritocratic standards within each race. Under the Texas solution, one Hispanic student loses out to another merely because the rejected student went to a more academically challenging high school. Besides, once the administration has accepted that the goal of the Texas solution is to engineer a “diverse student body,” liberal critics will notice that it does not do this job as well as preferences do. If it is okay to count by race at the end of the process, why not at the beginning?
If President Bush stood foursquare against state-sponsored discrimination, he would have a bitter fight on his hands. He clearly does not relish this, even though the public would be on his side in the fight. Instead, his dodge has ensured that he will again and again be forced to clarify what he means. Subsequent litigation will present the same question in different form. Can this preference program stand? Can this one? Each time, the stakes will be just as high, the so-called “civil rights groups” just as ready to accuse Bush of “turning back the clock.”
We believe that racial preferences are immoral, both in themselves and in the duplicity that they seem to require; that they are a distraction from the task of helping blacks and Hispanics to make it in non-rigged academic and economic competitions; and that they add to America’s racial strife. We would abolish state-sponsored racial discrimination in university admissions, in government contracting, and in private-sector employment. (The current “disparate impact” standard in the law treats companies as presumptively guilty of racial discrimination if their employees do not have the “correct” racial composition.)
Very few of these preferences have been enacted legislatively. Many of them contradict laws on the books. When the public has had a chance to vote on preferences, as in the referenda in California in 1996 and Washington state in 1998, colorblindness wins handily. The president does not want to fight about preferences, and the chief political response that Tom Daschle can think to make is to submit a Democratic brief to the Supreme Court. But this issue has been the playpen of legal elites for long enough. The failure of the political class to engage the issue of preferences, openly and without evasion, is a retreat from democracy.