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Michigan Fallout
What Happens Next?


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Peter Kirsanow

Sometime in the next few days the college-admissions landscape will change, perhaps dramatically. While some liberals predict an educational catastrophe is in the works, many conservatives fear a baby is about to be split. But regardless of how the Supreme Court rules in the Michigan preference cases, the debate over diversity will be far from over.

There are innumerable ways the Court could rule, but the three most likely outcomes involve the following holdings (remember, the strict-scrutiny analysis applied by the Court in racial-classification cases requires the classification to be supported by a compelling governmental interest and be narrowly tailored to serve that interest):

1. Promoting racial diversity on campus is not a compelling state interest, therefore both the UM undergraduate and law-school preference programs are invalid. The Court needn’t reach the narrow-tailoring analysis.
2. Diversity is a compelling state interest, but neither the UM undergrad nor law-school preference programs are narrowly tailored to serve that interest, so the programs fail.
3. Diversity is a compelling state interest, but only the law-school preference program is narrowly tailored.

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The first outcome is the one most consistent with prevailing Fourteenth Amendment jurisprudence. Racial classifications are so inherently suspect that little beyond remediation of past discrimination constitutes a compelling state interest. Indeed, while campus diversity may be a desirable interest, the attenuated arguments in support of UM’s preference programs are themselves the best evidence that diversity is not a compelling state interest. Lately, even some preference proponents seem, at best, agnostic about the purported educational benefits of diversity, especially in light of the National Association of Scholars’s revelation that data from UM’s own diversity analysis contradicts UM’s claims regarding the positive effects of diversity. Moreover, if history shows anything, it’s that bad things happen when the state counts by race, even for benign reasons.

Nonetheless, the smart money appears to be on the Court issuing a decision along the lines of either outcomes #2 or #3 above. (Swing votes and all that.) Of course, much depends on the nuances, shadings, and contours of the opinion. And complicating matters further is the possibility of concurring opinions. Just think of the mischief caused by a few lines from Justice Powell’s opinion in Bakke.

Yet one thing is almost certain: the manner in which colleges achieve and maintain racial diversity post-Michigan will be significantly altered. For even if the Court finds diversity to be a compelling state interest, it is highly unlikely that both of UM’s programs will be found to be narrowly tailored. Therefore, college-admissions programs, many if not most of which employ a preference system as blunt as UM’s, will have to be reconfigured if they are to achieve and maintain diverse student populations.

And achieve and maintain they will. Surveys commissioned by Professors Stanley Rothman and Seymour Martin Lipset (whose own regression analysis undercuts UM’s articulated rationale in support of preferences), and reported in The Public Interest, highlight college administrators’ fervent support for preferences. For example, whereas 67 percent of students strongly agree with the statement, “No one should be given special preferences in jobs or college admissions on the basis of their gender or race,” only 26 percent of college administrators concur. A review of the amicus briefs in the Michigan case also reveals a nigh religious belief among elites in the benefits of diversity.

Consequently, if the Supreme Court strikes down one or both of UM’s preference programs, expect the following to happen, irrespective of the Court’s rationale:

First, there will be a general wailing and gnashing of teeth about the inevitable disappearance of preferred minorities from college campuses. But while there may be a temporary dislocation at some of the more selective schools, the experience of Proposition 209 shows that the “cascading effect” in minority admissions at next-tier schools will result in virtually no drop-off in overall minority college attendance, and minority admissions at elite schools will gradually return to pre-Michigan levels, due in part, to the factors noted below.

Second, some colleges will develop even more Byzantine admissions formulae to further disguise the use of preferences. Obviously, this is much less likely to occur if the Court holds that diversity is not a compelling state interest — college general counsels can be expected to advise their clients appropriately. But once again the aftermath of Prop. 209 (as well as the Fifth Circuit’s Hopwood decision) instructs not to underestimate the willingness of some to circumvent almost any obstacle to preserve the preference regime.

Third, the assault on objective measures of academic achievement will continue apace. Expect the influence of SATs and high-school proficiency exams to be further eroded if not eliminated. The problem of rampant grade inflation may well be rivaled by the proliferation of soft grading standards such as pass/fail.

Finally, most schools will adopt race-neutral alternatives to preferences. These include the percentage plans used in California, Florida, and Texas as well as affirmative action based upon socioeconomic disadvantage.

No device is as effective as outright preferences in achieving the level of minority admissions desired by a given college. In the end, a number of other methods, or combinations thereof, will be used by colleges to maintain a diverse student body. All of them are predicated on a presumption that the profound racial educational-achievement gap is likely to persist for decades and, therefore, admissions officers must either pretend the gap doesn’t exist or employ Oz-like mechanisms to artificially erase the gap.

Regardless of whether these efforts are well-intended, they all fail to address the underlying problem: abysmal K-12 education and family environments not conducive to academic competence. This is where the focus should be, not on the latest admissions gimmick offered up to the diversity gods. The hope is that the Supreme Court will confound the smart set and issue a decision that will compel abandonment of preference in exchange for an insistence upon excellence. As Abigail and Stephan Thernstrom would say — no excuses.

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



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