Rejecting Admission Discrimination
Be grateful Bush won.

Mr. Clegg is general counsel at the Center for Equal Opportunity.
July 9, 2001 10:20 a.m.

n June 27, the Washington Post ran an op-ed, "The Strong Case for Campus Diversity," by Eric Holder and Neal Katyal, two ex-Clinton administration Justice Department officials. In it, they defend the use of racial and ethnic preferences in university admissions, arguing that the justification for discrimination in this context is much stronger than it is for government-contracting preferences.

While it was gratifying to see an implicit acknowledgment of just how bankrupt the case for contracting set-asides is — especially from these authors, whose Justice Department spent the last eight years defending them, tooth and nail — their op-ed only underscores that the case for admissions discrimination is just as weak.

Like universities themselves, Holder and Katyal have (thankfully) given up on the so-called remedial justification for preferences — the claim that slavery and Jim Crow justify preferential treatment for 17-year-old college applicants, born in the mid-1980s, twenty years after the Civil Rights Act of 1964. Instead they rely on the "diversity" mantra.

But this is equally unpersuasive. The claim is that racial and ethnic discrimination in admissions is essential if universities are to be "places where people from different walks of life and diverse backgrounds come together to learn from one another." But skin color does not equal "walk of life" and national origin does not equal "background." There are African Americans and whites from all walks of life and there are Latinos and Asians of every background. The assumption to the contrary used to be called stereotyping.

Holder and Katyal stress that diversity "enriches all students in a unique way" — but of course this enrichment does not benefit the students who get a thin rejection letter because they are the wrong color and have the wrong ancestors. And there is great irony in the authors' premise that students are being brought "together as democratic equals" when, in fact, everyone knows that some races are more equal than others.

Holder and Katyal assert that there is a "crucial distinction" between racial classifications (bad) and racial considerations (good). But if race and ethnicity are being considered, it must be because — in at least some cases — they will make the difference between whether a candidate is admitted or not. Otherwise, there's no point in considering them at all, right? And in those cases where it makes the difference, then racial or ethnic discrimination has occurred.

Nor are preferences a mere tiebreaker or tiny plus factor. The studies published over the years by the Center for Equal Opportunity — based on the universities' own data, obtained through freedom-of-information laws — and the evidence uncovered through litigation against the schools have shown that the academic qualifications demanded by schools vary dramatically according to the skin color and ancestry of the applicant. Subsequent academic and professional performance by those who are preferentially admitted is, therefore, lower too.

As a consequence, Holder and Katyal are wrong to declare that preferences are "the ramp up to a level playing field — with no further affirmative action needed for the rest of one's life." Instead, it is the first layer in a tissue of lies that foster hypocrisy, resentment, stigmatization, and lower standards.

By systematically admitting African Americans and Latinos who have performed and will continue to perform at a lower academic level, racist stereotypes about their lack of intellectual ability are inevitably reinforced among their classmates and professors. This stigmatization hurts not only those who are given preferences but also blacks and Latinos who are not, and it plants the seeds of doubt not only in the minds of other groups but in their own as well.

The most chilling part of the op-ed is its attempt to reassure us that the opportunities for fraud in university admissions are limited because the school "has years to verify any individual applicant's claims." In other words, Holder and Katyal expect schools to investigate whether an applicant is really an African American, Latino, or American Indian, instead of merely white, Arab American, or Asian Indian. Will they use genealogical records and a one-drop rule?

Holder and Katyal also warn that, if "university educators who are experts in their fields" are not allowed to have their way, then they may well "reduce their reliance on traditional standards of merit." That is, if admission bureaucrats aren't allowed to use overt preferences on top of otherwise valid academic criteria, they will jiggle and dilute the criteria to guarantee a predetermined racial and ethnic mix. That is a real danger, all right, but such stubbornness and willingness to destroy the system rather than change it were not acceptable excuses during the post — Brown v. Board of Education era of massive resistance, and they should not be accepted now either.

Finally, preferences are insulting. African Americans are being told that, despite making enormous contributions over the centuries to American life and culture in the teeth of horrific discrimination, they can no longer be expected to succeed unless the bar is lowered for them.

Holder and Katyal call on the Bush administration to follow the Clinton administration's policies and "reaffirm" that admissions discrimination is lawful. One hopes that the new administration will have more respect for the principle of nondiscrimination than that.