In a June 22, 2009, letter obtained by my organization, the Center for Equal Opportunity, the Civil Rights Division in the Obama administration’s Department of Justice has challenged a school’s efforts to “racially balance” its students. Specifically, the division challenged the school’s practice of leapfrogging candidates with lower scores over those with higher scores in order to ensure a particular degree of racial representation.
Indeed, in its insistence on a colorblind approach, the administration went even farther, apparently objecting even to measures that, while racially neutral on their face, were nonetheless adopted with an eye to achieving particular racial results and, specifically, a racial balance. For example, the administration archly noted that the number of accepted candidates overall had been expanded; moreover, it complained that selection criteria were being changed — in particular, that grades were being given more weight relative to other criteria than had previously been the case. It specifically attacked the race-norming of selected students; that is, the administration did not like the fact that a top white student and a top black student were picked, rather than just the top two students, even if they happened to be the same color.
Sound implausible — and, if one supports colorblind equal opportunity, too good to be true? Well, it is all true, but let me elaborate.
The context is a high school that “is continuing to racially balance the homecoming court.” The Civil Rights Division’s letter objects that black female students who received more student votes than white female students were nonetheless denied slots as senior maids, junior maids, and sophomore maids. The division did not like this, nor apparently the expansion of the homecoming court to include six rather than four senior maids, nor the addition of grade point averages as a factor in selection, nor the fact that the school “recognized the top black vote recipient and the top white vote recipient as junior maids,” rather than just “the top two vote recipients.”
The division is precisely right in the position it has taken in this matter. And it should take the same position in the next case that comes along where a school — including a college or university — accepts a student of one color with lower scores, grades, and other qualifications than a student of another color, just because the school wants a better “racial balance” or more “diversity” or greater representation of otherwise “underrepresented” racial groups.
It should reject the deliberate re-weighting of selection criteria (for example, the de-emphasizing of SAT scores) when it is done simply to ensure that more students of one color, and thus fewer students of another, are chosen. And, of course, it should oppose race-norming in the educational context, just as Congress has barred it explicitly in the employment context.
Are the arguments for a racially balanced homecoming court a lot weaker than the arguments for a racially balanced student body, whether in K–12 or higher education? No: They’re all bogus. And does it matter that, in one instance, it’s black students who are discriminated against and, in the other, the victims are white (and sometimes Asian, or Middle Eastern, or Latino)? It would be odd for the Civil Rights Division to take that position, when it is ostensibly ensuring “the equal protection of the laws.”