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 uesday's
decision by federal district Judge Bernard Friedman striking down
racial preferences in law-school
admissions
at the University of Michigan was a big win for the principle of
nondiscrimination — and for true affirmative action (more on
that later). It was an even bigger loss for defenders of racial
preferences, who put on the best case they could muster — and
lost, big-time.
They put on the ultimate show trial for "diversity," the latest
in a long string of psychobabble-style rationales for racial preferences.
Forty-one students from around the country and three pro-preference
groups — with cheery names like the "Coalition to Defend Affirmative
Action By Any Means Necessary" joined the law school in its defense.
In the process, they revealed a great deal. First, that the preferences
are big. The typical non-minority student admitted to law
school at Ann Arbor boasts an LSAT score of 43 and a median undergraduate
grade-point average of 3.58, compared to 34 and 3.05, respectively,
for specified minorities. Translating the differential standards
into odds for admission, a black applicant has 258 times better
odds of obtaining admission than a similarly qualified white student.
Second, the case revealed that "diversity" and "affirmative action"
are euphemisms for racial profiling. The law school employs the
most casual stereotypes for its blatantly discriminatory practices.
Minorities "are particularly likely to have experiences and perspectives
of special importance to our mission," says the law school's admissions
policy. In other words, it makes assumptions about a person because
of his or her race — precisely the grounding for racial profiling
in the criminal context. The defenders of racial classifications
cannot have it both ways: Either invest racial generalizations with
the force of law, or forbid them altogether.
Third, the case demonstrated that supporters of preferences crave
racial balancing, not real diversity. The law school grafted its
racial preferences upon an admissions system that already
gives individuals credit for special characteristics — such
as growing up in an ethnic household, or knowing multiple foreign
languages — that engender actual diversity in the academic
environment. Because that system did not produce enough minority
students to satisfy admissions officials, U. of M. created a "special-admissions"
category to leapfrog minority applicants over others — based
on the assumption that, because of their race or ethnicity
alone, they would diversify the student body.
Judge Friedman rejected both diversity and societal discrimination
as a justification for preferences. Acknowledging that Justice Lewis
Powell wrote approvingly of diversity as a justification for race-conscious
university admissions in his 1978 opinion in Regents of the University
of California v. Bakke, the judge found that the real
motivation for the preferences was racial balance, which is constitutionally
impermissible. What's more, even if diversity is an appropriate
rationale, it could be accomplished by looking at applicants as
individuals rather than as members of racial or ethnic groups.
Ironically, some of the social scientists testified that black and
other minority students are underrepresented in law schools because
they are often subjected to abysmal K-12 educational experiences.
Exactly right! Stephan and Abigail Thernstrom, in their outstanding
book America
in Black and White, found that the average black high-school
senior is four academic years behind the average white senior. But
we cannot solve the problems of K-12 education by adding points
to law school admissions tests.
That is the very fraud that race-based affirmative action perpetuates:
Manipulating qualifications to produce artificial "diversity" in
higher education creates the façade that we are solving racial disparities,
when in fact we are inviting the underlying problems to continue
to fester and grow. By contrast, when race is removed as a factor
in the admissions process — as has happened in California,
Texas, and Florida — officials are then forced to confront
painful realities and begin doing something about them. Governor
Jeb Bush's A+ program, which allows youngsters to opt out of failing
public schools, has improved both school and student performance
in the state's worst schools. That is true affirmative action, and
we should settle for nothing less.
Judge Friedman declared: "Whatever solution the law school elects
to pursue, it must be race neutral. The focus must be upon the merit
of individual applicants, not upon assumed characteristics
of racial groups. An admissions policy that treats any applicants
differently from others on account of their race is unfair and unconstitutional."
By so ruling, Judge Friedman joins the U.S. Appeals for the Fifth
Circuit, which struck down preferences at the University of Texas
law school in the 1996 Hopwood case. But his decision conflicts
with a recent ruling by a different federal trial court that upheld
preferences (and the diversity rationale) in the context of undergraduate
admissions at the U. of M.
Those and other pro-preference rulings mean that the U.S. Supreme
Court will soon have to resolve the conflict and address the diversity
rationale in the context of postsecondary admissions. That in turn
will force the Bush administration to take a stand that it clearly
would prefer not to take. It shouldn't hesitate to do so: Real affirmative
action means helping disadvantaged individuals, not conferring racial
preferences.
The intellectual charade in defense of racial preferences is crumbling.
Cheers to the Center for Individual Rights, which has waged this
battle in courts in Texas, Washington State, and Michigan. And cheers
to Judge Friedman, whose thorough, sensitive, and principled opinion
takes us another step forward. Toward a true era of racial healing.
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