The Never-Ending Story
When will racial preferences end?


Peter Kirsanow

When will they end? That’s the question that has been asked about racial preferences ever since their inception over 30 years ago. Back then, proponents assured us that preferences wouldn’t last long — perhaps a generation at the most. Not one preference supporter predicted that they would last into the next millennium. But, at the same time, no one was willing to offer either a definitive deadline or a standard by which the end game could be gauged.

Today, a third generation is poised to become the beneficiaries (or victims) of racial-preference policies. Yet barring their wholesale rejection by the Supreme Court, preferences won’t be ending anytime in the foreseeable future.

The “when will they end” question has a particular legal significance, because it’s part of the evaluation of whether a racial classification meets the “narrow tailoring prong” of strict scrutiny. Indeed, it’s a question that may affect the outcome of the Michigan cases.

Strict scrutiny requires that a racial classification further a compelling governmental interest and be narrowly tailored to serve that interest. In U.S. v. Paradise, the Supreme Court required that an affirmative-action policy be of finite duration to qualify under the narrow-tailoring prong of strict scrutiny.

Paradise, however, was an employment case where the affirmative-action plan in question had been designed to remedy past discrimination. The Supreme Court has not specifically addressed the duration issue in the context of a voluntary race-conscious admissions policy. Two circuit courts have done so, but have yielded different results.

In Tuttle v. Arlington County School Board (1999), the Fourth Circuit considered the following factors in its narrow-tailoring analysis: (1) the planned duration of the policy; (2) the efficacy of race-neutral policies; (3) the relationship between the numerical goal and the percentage of minority-group members in the relevant population; (4) the flexibility of the policy; and (5) the burden of the policy on third parties.

On the other hand, in Johnson v. Board of Regents, University of Georgia, a 2001 case, the Eleventh Circuit considered all the above factors except duration. That circuit stated that a university’s interest in diversity may not have a logical end point. Presumably, it could go on in perpetuity.

A question by Justice O’Connor, during last week’s oral arguments in the Michigan law-school case, signaled that the Supreme Court may consider the duration factor in a narrow-tailoring analysis of a race-conscious admissions policy.

. . . in all programs which this Court has upheld in the area of — you want to call it affirmative, there’s been a fixed time period within which it would operate. It could see an end — an end to it. There is none in this, is there? How do we deal with that aspect?

The answer of Michigan’s counsel was at once familiar and amazing.

What the policy says, of course, is that it will only take as long as it is necessary in order to achieve the educational objectives. I don’t think this Court should conclude that this is permanent, because there are two things that can happen that will make this come to an end.

The first is that the number of high-achieving minorities will continue to grow and that the law school will be able to enroll a sufficient number [of minorities] to have a critical mass, or meaningful numbers with substantial presence, without having to take race into account.

The second thing that can happen, Your Honor, is that we could reach a point in our society where the experience of being a minority did not make such a fundamental difference in their lives, where race didn’t matter to the law school’s educational mission.

While I can’t say when that will happen, we certainly know that as a nation, we have made tremendous progress in overcoming intolerance. And we certainly should expect that that will occur with respect to minorities. (Emphasis added.)

So it will end when (1) the grades and test scores of preferred minority applicants are high enough so that a “critical mass” could be admitted without preferences, or when (2) society becomes sufficiently tolerant of minorities. Obviously, neither of these “standards” contains any meaningful guidelines regarding duration. The second one is especially amorphous.

Yet the first standard is perhaps more troublesome. Even leaving aside the fact that the proponents of preference have been unable or unwilling to define “critical mass,” when can we reasonably expect that the grades and test scores of college applicants from preferred minority groups will be competitive with those of others? Abigail and Stephan Thernstrom’s review of the National Assessment of Educational Progress (NAEP) test scores of high-school students provides some insight. The Thernstroms computed the differences between black students and white students on the NAEP achievement tests and expressed them in terms of years. For example, in 1971, the mean differential between blacks and whites in reading proficiency was 5.9 years. That is, if the typical 17-year-old white student was reading at an 11th-grade level, the typical 17-year-old black student was reading at a 5th-grade equivalency.

The reading gap had narrowed to 2.5 years by the mid 1980s, but then actually began to expand, so that by the mid ’90s the gap stood at 3.9 years. In other words, it took nearly 25 years for the gap to narrow by a mere 2 years. In mathematics, the gap only narrowed by approximately 1 year over a similar period, and by the mid ’90s stood at 3.4 years. Most sobering was the science gap, which actually grew — by nearly a year — over a 25-year period.

Were these trends to continue, the reading and math scores of black students wouldn’t be competitive with those of whites until about the year 2065, with a prodigious science gap remaining.

But even this may be an optimistic assessment. For compounding the test-score differential is the self-perpetuating nature of preferences. As noted by commentators as varied as John McWhorter and Glenn Loury, the perverse disincentives produced by preferences actually retard the educational progress of the preferred groups. Moreover, the differentials noted above apply only to those students who actually take the tests. Because of the higher dropout rates among minority students, proportionately fewer may actually take the tests, making it more difficult to reach the fabled “critical mass” sought by Michigan’s and other preference programs.

Consequently, even after a century of preferences, there still could be no limit on their duration. If the Supreme Court applies the Paradise duration requirement to the Michigan program, it will not pass the narrow-tailoring test. Neither will other preferential policies of indeterminate duration. Perhaps more emphasis could then be placed where the NAEP results show it’s desperately needed: K-12 education.

Peter N. Kirsanow is a member of the U.S. Commission on Civil Rights.