The proponents of racial and ethnic preferences want to frame the debate as if it hinged on whether racial and ethnic diversity is a good thing or a bad thing. But of course that is not the issue at all. No one, except for a few white supremacists and black separatists, is really opposed to such diversity. The issue, rather, is whether we ought to engage in racial and ethnic discrimination in order to ensure such diversity.
Those who answer yes remind me of the army officer in Vietnam who said that he had to destroy the village in order to save it. The reason that most Americans have positive feelings about diversity is because of their belief that it is un-American to exclude anyone because of characteristics like skin color and where one’s ancestors came from. To use diversity as an excuse for discrimination is bizarre, contradictory, and self-defeating. The discrimination results in precisely the unfairness and divisiveness that ought to be anathema to the celebration of diversity.
Or, to put it another way, diversity’s benefits are like love: Love is wonderful, no one is against love, but it cannot be forced. Or like happiness: One is much more likely to reach it if one is not obsessing about finding it. Diversity achieved by bean-counting and quota-mongering is not only not any good, it is worse than colorblind nondiversity.
It is very important that the Supreme Court rule that a desire for diversity is no excuse for racial and ethnic discrimination. The Bush administration, while urging the Court to strike down the University of Michigan’s discrimination as illegal, has suggested that it can leave unresolved whether such discrimination might be permissible, and instead simply rule that, in all events, UM’s program fails because the university hasn’t tried to achieve diversity by changing its admissions standards. In lawyer’s lingo: The Court can rule that UM’s quotas are not “narrowly tailored” to achieving diversity.
But the Court is unlikely to write such a decision, because it knows the opinion would be nearly worthless. It would leave unresolved the conflict among the various lower courts about whether diversity is a compelling governmental interest. Nor would it answer whether the trial court’s injunction against consideration of race by the University of Michigan law school ought to remain in place.
The opinion suggested by the Bush administration would also be a hard one for the Court to write, since it would require the Court to ignore a great deal of its case law. When laws — even laws neutral on their face, like grandfather clauses — are deliberately written with an eye toward including some and excluding others, on the basis of race, the Court has struck them down. When the “narrow tailoring” is to a racial result, the Court must determine whether the result is itself permissible. If UM changes its admissions standards in order to boost the enrollment of blacks and Latinos and limit the enrollment of whites and Asians, the Court’s cases deem that discrimination, even if the new standards aren’t explicitly racial.
Such an opinion by the Court would also be practically ineffectual. Lee Bollinger — president of the University of Michigan when it was sued, now president of Columbia — would read the Court’s decision, call in his admissions committee, and tell them, “The Supreme Court has ruled that we cannot use racial preferences unless we have first tried other means to achieve diversity. No problem. I want this committee to use our admissions data from the last two or three years and write me a little report.” He pauses and gives them a wink. “I suspect you will conclude that the various race-neutral devices you’ll consider do not achieve the degree of diversity that we need.” He smiles and ends the brief meeting: “Meanwhile, continue to use racial and ethnic preferences.”
A decision by the Court, on the other hand, that said that diversity did not justify the use of racial and ethnic classifications would be much harder to evade. Certainly admissions committees would try to, and the most direct means of doing so would be by going file by file through applications and quietly, surreptitiously ranking the less qualified over the more qualified because of race. But this is much harder to do, especially for large schools.
Moreover, it is one thing to bend the law, another to break it. If it ever leaks out that such discrimination is going on, the consequences will be severe. A school can lose its federal funding. Perhaps even more sobering, those who are engaging in the discrimination will now be personally liable for thousands of dollars if they are caught, and perhaps even criminally liable. And such leaks will occur, no doubt about it. They have in the past, and there are plenty of people, even in the most politically correct schools, who oppose preferences.
It ought not tax President Bush’s imagination for him to foresee a meeting like the one hypothesized above with Lee Bollinger. The president may even have presided over some like it.
While the president says that treating individuals on the basis of race is wrong, at the same time he says that racial diversity itself is a proper concern of government. The administration’s briefs in the Michigan cases say that quotas, arbitrary point systems, and “critical mass” approaches are wrong and illegal, yet in President Bush’s own appointment policies it appears that race, ethnicity, and sex are frequently decisive factors. Rumor has it that there is an unwritten rule requiring at least 40 percent of the administration’s nominees to be either minorities or women.
Clearly the President does not practice what he preaches — or, at least, what he preaches some of the time is inconsistent with what he practices some of the time. And his practices show clearly the untenability and unfairness of diversity-justified discrimination.
Diversity of race is not necessary to get diversity of thought. The head of the Justice Department’s civil-rights division, Ralph Boyd, and the Education Department’s general counsel, Brian Jones, and Assistant Secretary for Civil Rights, Gerald Reynolds, reportedly endorsed a strong brief ruling out racial and ethnic preferences. Meanwhile, Condoleezza Rice and Colin Powell rejected that approach. Yet all five happen to be black.
Individuals who are passed over by a university or by a president for reasons of skin color do not die, but their lives are changed irrevocably and unfairly, and we are all poorer for it. That is true whether the reason is overtly racial, or whether it is a result of selection criteria being chosen with an eye on race, ethnicity, and sex. This is not a problem that will be “worked out” if left alone by the courts. The Constitution was supposed to have removed race from government decision-making; the relevant statutes (the text of which the Court has too often refused to give effect to) could hardly be clearer; and the political process itself, quite predictably, always has been and always will be distorted by racial politics. All levels of government, including public universities, need the Court’s clear guidance.
— Roger Clegg is general counsel of the Center for Equal Opportunity in Sterling, Virginia.