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At the outset, it should be noted that these consequences would result from colleges' actual compliance with Grutter — something that is less than a certainty, given that it appears that the elites' allegiance to diversity trumps their allegiance to equal protection; and given that the Court has shown a willingness to discard inconvenient precedents and invert the meaning of the Fourteenth Amendment to promote, as Justice Thomas puts it, "the faddish slogan of the cognoscenti." As noted in a previous article (see "Michigan Impossible"), even if colleges act in good faith, compliance with Grutter will be difficult. However, if they do comply, the consequences of that effort will necessarily result in noticeable (if not significant) shifts in the current campus demographics. And that shift will most adversely affect black applicants to elite schools. The reason for this is that even though the Court mangled its strict-scrutiny standard by pronouncing student-body diversity a compelling state interest, it tried to keep some semblance of the standard by placing limits on the extent to which colleges can use race in admissions. The limits on the use of the enigmatic "plus" factor are the key. The Court permits selective colleges to use race as a "plus" factor to achieve a "critical mass" of underrepresented minorities in each entering class. But the Court also strictly prohibits "[e]nrolling a 'critical mass' of minority students simply to assure some specified percentage of a particular group merely because of its race or ethnic origin" (emphasis added). This, the Court admonishes, would be patently unconstitutional. In other words, colleges may not favor one underrepresented minority more than another in order to obtain a desired result — such racial balancing is unlawful. Thus, manipulating the "plus" factor to engineer the percentages of blacks, Hispanics, and Native American students on campus is forbidden. And that's precisely how Michigan backfires on a significant cohort of its intended beneficiaries. Because, until now, some colleges had been favoring one preferred minority over another. And if the evidence adduced in Grutter is any guide, unless colleges apply the "plus" factor much more heavily to black applicants than to Hispanic applicants, the number of blacks admitted to elite schools will decline, perhaps sharply. Now that colleges can't treat preferred minorities differently merely to produce a racial mix that pleases the elites, preference litigation may take a different turn. Unless schools adhere strictly to Grutter — that is, unless the "plus" factor is fairly applied to all preferred minorities — the next challenge to preferential admissions policies may come not from a rejected white applicant, but from a Hispanic one. Justice Rehnquist notes that the Michigan admissions data strongly suggest that there's a preferential pecking order even among the classes of preferred minorities. In descending order, the preferences appear to go as follows: 1. Blacks In defending its preference policies, Michigan Law claimed that race/ethnicity was not, contrary to all indications, the predominant or decisive factor in black and Hispanic admissions. As proof, it boasted that it had even rejected several black, Hispanic, and Native American applicants with relatively high scores — i.e., above a 3.5 GPA and a 159 LSAT. But Rehnquist indicates that in crowing about this ostensible egalitarianism, UM may have inadvertently revealed that it had been engaging in the very type of racial balancing the Court proscribes. Of the 67 preferred minority applicants with a GPA at or above 3.5 and an LSAT at or above 159 who were rejected by UM Law between 1995 and 2000, 56 were Hispanic, but only 6 were black: this, despite the fact that the total number of black applicants in each of those years was approximately twice that of Hispanics. (Although the rejection rates don't consider for variables other than GPA and LSAT, it's unlikely such variables account for more than a fraction of the disparity.) Moreover, Rehnquist notes that despite Michigan's assurance that it doesn't racially engineer its preferred enrollment, the percentage of preferred minority students admitted remained curiously static: Between 1995 and 2000, black enrollment hovered around 9 percent, while Hispanic enrollment was between 4-5 percent, and Native American enrollment 1 percent. An analysis prepared by Drs. Robert Lerner and Althea Nagai for the Center for Equal Opportunity shows that at many schools across the country, both blacks and Hispanics have a vastly greater probability of being admitted than their white counterparts. However, blacks have an even better shot than Hispanics. Three random examples:
If colleges follow Grutter, the apparently greater "plus" previously afforded black applicants must now be leveled. Since Hispanic applicants nationwide generally have higher scores than black applicants, this means more Hispanics should be admitted. Given that there are a finite number of seats at each school, Hispanics will displace blacks. And if the rejection rates noted above are any guide, that displacement could be sizable. And Hispanics may not be the only group that displaces blacks. A limited displacement could also be produced by Asian-American applicants, even though they don't get the "plus." The second-class status of Asian Americans in the preference scheme continues to perplex (see "The Non-Preferred Minority"). The Court sanctions their exclusion from the critical-mass calculation because the Court defers to colleges in their assessment that diversity leads to educational benefits. The educational benefits cited by UM are: (1) breaking down racial stereotypes, (2) promoting cross-cultural understanding, (3) exposure needed to prepare for the global marketplace, and (4) promoting spirited classroom discussions. The Court permits colleges to achieve diversity by awarding a plus to "underrepresented" groups — the preferred minorities. So, in order to get a "plus," one's group must bring to the campus the educational benefits of an underrepresented minority. Asian-American students plainly satisfy each of the four educational benefits the Court cites as flowing from diversity: Breaking down
racial stereotypes. A brief scan of popular media shows that Asians
are stereotyped no less frequently than the preferred minorities, and
probably more so. Furthermore, Asian Americans are underrepresented in many aspects of American life, including on many college campuses. And they've experienced a history of discrimination. Therefore, Asian-American students satisfy all of the criteria for being a "preferred" minority entitled to a plus factor. The failure to accord Asian minorities a plus thus reveals preference policies to be nothing more than overt racial engineering. It's clear that what schools really mean by an "underrepresented" minority group is one that's preferred by racial bean counters. And that apparently doesn't include Asian Americans. For if Asian-American applicants were accorded a plus, it would blow the colleges' critical mass sky-high and there would be, uh, well, you know, too gosh darn many of 'em. Nonetheless, while the Court permits colleges to withhold the "plus" from Asian applicants, it also prohibits colleges from massaging admissions to achieve predetermined percentages of any particular group. So, while Asian applicants may not get a plus, neither may their numbers be suppressed. This could also have an effect on college demographics, by displacing not only black students, but Hispanics, Native Americans, and a few whites as well. The post-Proposition 209 experience shows that where the admission of Asians is not suppressed, their comparatively superior qualifications will cause them to leapfrog over many applicants from the preferred groups. The overall displacement is difficult to forecast, but there is a good probability that black admissions would have suffered less had the Court struck down preferences altogether, compelling the use of race-neutral alternatives. Unfortunately, colleges that now employ such alternatives have already declared their intention to return to racially discriminatory policies. As stated before, the foregoing depends on college compliance with the language of Grutter. The prospect of litigation may keep colleges honest, but given that the Court has signaled — with "a wink and a nod" — toleration of racial engineering, colleges may well ignore Grutter's dictates in pursuit of the paramount objective of diversity. And with the Supreme Court as a guide, lower courts will desperately try to find back doors in the Grutter opinion to escape the unintended consequences of the Court's ruling. Grutter is
a bad joke for all Americans who believe in equal opportunity. But the
brunt of the joke could turn out to fall, once again, on the black guy. |
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theme often expressed by black comedians, especially Eddie Murphy, is
that even when things appear to be going well for blacks, something bad
will inevitably happen. For instance: Black guy wins an all-expense-paid
transatlantic cruise and rushes down to the pier, only to find the Amistad
waiting for him. Or: Landing party consisting of Captain Kirk, McCoy,
Scotty, and a black guy prepares to beam down to the unexplored Pleasure
Planet, but upon arrival — well, you know the rest.
At North Carolina State, 89 percent of black applicants with SAT scores
of 420 math, 380 verbal, and a 2.94 GMA are admitted — but only 4
percent of Hispanics.
