Affirmative Discrimination in Higher Education

by Roger Clegg
Notes on the continuing struggle

Racial and ethnic admission preferences will probably have to be pried from the cold, dead fingers of university officials, but the pressure to end this affirmative discrimination continues.

For starters, such preferences are unpopular with most Americans, and most Americans have a dog in this fight. I’ll cite just two recent polls, from somewhat surprising sources. A survey conducted last April by MTV of “millennials” aged 14 to 24 found that 90 percent “believed that everyone should be treated the same regardless of race” — and so, unsurprisingly, 88 percent opposed affirmative action. The Boston Globe in July discussed a survey that resoundingly confirms the view of Massachusetts as a very liberal state – with one notable exception. “Amid those liberal tendencies, though, was an outlier: a stark opposition to affirmative action. Just 24 percent agreed that qualified minorities should receive special preference in hiring and education, while 69 percent disagreed.”

Here’s hoping decision-makers will listen. They did in California, another blue venue: “California voters will not be asked this year to decide whether to roll back California’s ban on racial preferences in college admissions,” Assembly speaker John A. Perez announced this spring, according to the Sacramento Bee. The story notes, “The move came a week after three Asian-American state senators — who had previously supported putting the question to voters — asked Pérez to put a stop the measure.” That is, what doomed the measure was, in particular, opposition from Asian Americans.

Even among the intelligentsia, there is more and more call for schools to admit economically and socially disadvantaged students of all racial and ethnic backgrounds. Here are two thematically similar pieces appearing recently in two liberal bastions: from the New York Times, “If Affirmative Action Is Doomed, What Next?,” by David Leonhardt; and, from the Chronicle of Higher Education, “What Sotomayor Gets Wrong about Affirmative Action,” by Richard D. Kahlenberg. Both talk about income/locale-based alternatives to racial preferences in university admissions, since both believe that such preferences are dying, and both discuss two new works on the alternatives, Place Not Race, by Sheryll Cashin, and a chapter in The Future of Affirmative Action by Anthony Carnevale, Stephen J. Rose, and Jeff Strohl.

Sometimes the support given for ending racial preferences is not only unlikely but inadvertent. Janet Napolitano, now head of the University of California system, wrote a Washington Post op-ed this spring that was illogical and dishonest in predictable ways – mischaracterizing the state’s ban on racial preferences, ignoring the costs of such discrimination and overstating the benefits, etc. — but she grudgingly admitted that the “educational benefits” of “diversity” can be achieved without racial discrimination. So her complaining actually amounts to an admission that other schools in other states are required to forgo racial and ethnic discrimination, too — since the Supreme Court has made clear that they can engage in such discrimination only if there is no alternative way to achieve diversity.

Likewise, Columbia University president Lee Bollinger’s recent defense of racial preferences made clear that the principal reason he favors them is based not on the “diversity” rationale but on a remedial rationale long rejected by the Supreme Court.

And sometimes the case is made forthrightly: A particularly comprehensive critique of affirmative action in university admissions was recently published by Peter Schuck in National Affairs

Napolitano’s op-ed was prompted by the Supreme Court’s decision on April 22 in Schuette v. BAMN. There the Court upheld the constitutionality of the ballot initiative passed in 2006 by voters in Michigan to ban, among other kinds of affirmative action, the use of racial and ethnic admission preferences at its public universities. The initiative was prompted by the Court’s 2003 decision that had allowed (but of course not required) the use of such preferences at the University of Michigan.

The Schuette decision opens the door for other states to end the use of racial preferences in university admissions. The list of states that either do not use or at some point in recent years have not used such preferences is long and growing: Michigan, California, Washington, Nebraska, Arizona, Oklahoma, Florida, Texas, Georgia, Iowa, and New Hampshire. States in which bans in recent years have been actively considered include Utah, Missouri, Virginia, Ohio, and even Wisconsin.

There is a role for the national legislature, too, if only it would play it. The fiftieth anniversary of the 1964 Civil Rights Act would be a good time for Congress to clarify what the Supreme Court ignored in the Bakke case, namely that the act prohibits the use of racial preferences in admissions to federally funded universities. At a minimum, it should include in the reauthorization of the Higher Education Act a requirement that federally funded schools (i.e., all American colleges and universities except Hillsdale and Grove City) report publicly whether they use such preferences and, if so, how they meet the legal requirements put on them by the Supreme Court.

In all likelihood, however, the federal action will remain in the courts. And that brings us, of course, to the continuing saga of Fisher v. University of Texas.

In June 2013, the Supreme Court overturned a Fifth Circuit decision upholding the University of Texas’s use of racial and ethnic admission preferences, sending the case back because the lower court’s scrutiny of the discrimination had been insufficiently strict. This summer, alas, a divided Fifth Circuit panel on remand again upheld the university’s discriminatory admissions policy (here are the judges’ opinions), and a request for the full circuit to rehear the case has been filed and is now awaiting decision.

The panel’s majority opinion says that it is all right to engage in racial discrimination in order to achieve the educational benefits that purportedly accrue from having a critical mass of this or that racial group. Yet the precise nature of the “educational benefits” at the University of Texas is never defined, nor is the term “critical mass.” And how, in particular, can a court ensure that there is the “narrow tailoring” that Justice Kennedy’s 2013 opinion for the Supreme Court demanded in this case — that, specifically, there are no race-neutral ways of achieving the relevant educational benefits — when these terms are undefined? As a practical matter, it seems that the framework erected by the Supreme Court in Grutter v. Bollinger – the 2003 decision in which the Court upheld the use of racial preferences — is not working very well.

So it’s good that the legal team that is litigating the Fisher case is looking for other lawsuits to bring, and is targeting in particular Harvard, the University of Wisconsin, and the University of North Carolina–Chapel Hill.

Likewise, the Center for Individual Rights has filed a lawsuit in Connecticut on behalf of Pamela Swanigan, a graduate student in English at the University of Connecticut. The suit alleges that Ms. Swanigan was not allowed to compete for a highly prestigious merit-based scholarship despite being the top applicant the year she applied to UConn. Instead she was routed into a less prestigious and largely segregated scholarship program intended to increase “diversity” (Ms. Swanigan is biracial). As a result, she was deprived of the opportunity to compete for an academic award that would have benefited her career; what’s more, the diversity scholarship did not provide funds for off-campus dissertation work, an option that Ms. Swanigan wanted and thought she was getting.

I’m not at all convinced that there is a “compelling” interest in considering race for admissions into an English graduate program, even under the Court’s misguided precedents, let alone that the racially discriminatory award of scholarships is “narrowly tailored” to whatever that interest might be.

But here’s the fundamental question in this whole area: Just what do we expect African-American and Latino students to say to white and Asian-American students that will provide the latter with such compelling “educational benefits” that racial discrimination is justified to make it perhaps more likely that these random conversations take place? The purported existence of such conversations — which is what the “diversity” argument boils down to – is the only justification for admission preferences that the University of Texas, or any other university, is using or can use.

Any such benefits are flimsy, debatable, and marginal, while the costs are heavy, indisputable, and numerous, as I discuss here. Among those heavy costs is, for example, the mismatch effect – the presence of which is increasingly well documented, and which harms, in particular, the African-American and Latino students who are supposed to be the beneficiaries of this discrimination.

One last thing: As legally dubious as the use of racial and ethnic preferences is by universities in student admissions, they are even more indefensible in faculty hiring and promotion.

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