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Progress and déjà vu.


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June 23 marks the one-year anniversary of the Supreme Court’s decisions in the two University of Michigan affirmative-action cases. The decisions were hailed by the proponents of racial preferences as an unalloyed triumph. They were indeed a disappointment to those of us who oppose such discrimination, especially since we had had such high hopes that the Court would reject outright the “diversity” justification for racial and ethnic discrimination but, in a singularly unpersuasive opinion by Justice O’Connor, the Court instead embraced it.

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Not So Gloomy After All

A year later, however, the landscape is less dark for the opponents of preferences, and more sobering for those who like them. Affirmative discrimination had been unpopular with most Americans and on the defensive for the years running up to the University of Michigan decisions–and it remains so.

Opponents of preferences have not quietly folded their tents on gone away. Ward Connerly has launched a drive to ban preferences at ground zero: Michigan. While this ballot initiative has faced several hurdles (including a lack of support from the Republican establishment and court challenges), it remains on track. Indeed, the Michigan house this month passed an amendment to the state’s higher-education bill that bans preferences, and a state supreme court decision there suggests that existing state law might already illegalize what the university is doing.

Meanwhile, the National Association of Scholars has systematically enlisted its state affiliates to send freedom-of-information requests to state schools, asking for documents bearing on whether those schools use preferences and, if so, how exactly they work: who is preferred, who is not, how heavily the preferences are weighted, and so forth. NAS has made clear that the schools can expect this request every year. Many schools are indicating that they don’t use preferences; others still do, but the effect of the information requests is to make these schools more vulnerable to public, legislative, and courtroom pressure.

The Center for Equal Opportunity has likewise drafted “sunshine” legislation that would require schools to report whether they use preferences and, if so, to spell out how the preferences work and how they meet the legal limitations that the courts have put on them. These bills are being shared with committee staff in the U.S. Senate and House, and distributed to various state legislatures. CEO has also challenged racially exclusive summer programs, internships, and financial aid, with astonishing success; a Chronicle of Higher Education cover story this March was headlined, “Not Just for Minority Students Anymore: Fearing charges of discrimination, colleges open minority scholarships and programs to students of all races.”

The saner members of the U.S. Commission on Civil Rights, like Peter Kirsanow and Abigail Thernstrom, have in various ways also suggested to universities that as commissioners they look askance at the heavy-handed preferences many have been using. The U.S. Education Department’s Office for Civil Rights has continued to encourage schools to use “race-neutral alternatives” to achieve diversity and has stated that it is “extremely difficult [for universities] to defend” the racially exclusive programs that CEO has challenged.

And, of course, there have been plenty of affirmative-action bake sales–the most famous one, perhaps, on the Boston Public television show, that episode of which tilted against racial preferences. Sobering stuff, indeed, for the quota-mongers when they can’t even count on Hollywood.

Racial Mixmasters and Civil-Rights Re-enactors


The civil-rights establishment and the rest of the Left are already in a bad mood in the wake of Bill Cosby’s wake-up call to them. But they were in a bad mood before that on account of the 50th-anniversary celebration last month of Brown v. Board of Education. Why? Because, Brown notwithstanding, there is still a great deal of racial imbalance in our public schools–that is, still many schools that are almost all-white or all-minority. And we already knew that they are likewise unhappy that, when the most selective colleges and universities make admission decisions on the merits, without regard to race, they end up with relatively few African Americans.

So unhappy are they, in fact, that the would-be racial mixmasters are willing to use busing, gerrymandered school-attendance zones, and other racially preferential systems to ensure “diversity” in K-12 education. Similarly, they support the continued use of double standards–i.e., lower academic standards for African Americans and, often, Latinos and American Indians–to ensure the same kind of diversity at universities.

Fifty years ago, those opposing the Left’s civil-rights agenda included many bigots who didn’t want racial mixing. But that has changed. Most non-Leftists today have no objection to diversity and indeed, if all other things were equal, would rather have it than not. But they are not so smitten with it–and not so horrified by the prospect of racial imbalance–that they are willing to engage in racial discrimination or other dubious social policies in order to achieve it. It is this insistence on “getting the numbers right” that now marks the Left on civil-rights policy.

Why is a politically correct racial mix so important to them? The charitable explanation in the K-12 context is that they believe that white people are prejudiced and will become less so only if they are forced to sit side-by-side with members of minority groups, and that blacks will also benefit because, along with the white children, comes more money and thus better education. The trouble is that logic, history, and data make both propositions increasingly doubtful, and there is little credible evidence that diversity per se improves education or anything else, whether for kindergartners or law students.

In their heart of hearts, those on the Left must know this. Their insistence on racial balance, and their recoiling from its absence, have at the end of the day only weak rational explanations, and so must also reflect something psychological. For them there is a deep-seated appeal, to both their social aesthetics and their social-engineering instinct, to classrooms that all look like America.

Or perhaps it is a mixture of atavism and nostalgia: A desire to be, or pretend to be, Atticus Finch or Thurgood Marshall. The fight against Jim Crow was a moment of glory, and who can blame people for wanting to re-enact it? We have Civil War re-enactors, and Civil Rights re-enactors. The former are mostly harmless; the latter are mostly not.

Today those who think they are the “good guys” want to use race to trump merit and to determine where people are allowed to attend school, sacrificing sound educational policies along the way. Never mind that we are destroying neighborhood schools, for instance, or admitting less-qualified over more-qualified college students for no reason except skin color. Can’t be helped.

Worse, by pretending that the problem remains “segregation,” the real reasons for the poor academic performance of African Americans–high illegitimacy rates, lack of accountability and choice in public schools, and a widespread belief that studying hard is “acting white”–are ignored.

It’s not the racial mix that matters. The sooner the civil-rights establishment and the rest of the Left acknowledge this fact, the better off all us–of all colors–will be.

Roger Clegg is general counsel of the Center for Equal Opportunity.



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