Politics & Policy

Let The Sunshine In

Mary Frances Berry wants to keep preference practices in the dark.

An interesting dust-up at the U.S. Commission on Civil Rights was reported earlier this month on the Chronicle of Higher Education’s website. A special assistant to frequent NRO contributor Peter Kirsanow, one of the sane commissioners, sent out a voluntary survey to various universities, asking them whether and how they used racial and ethnic preferences in admissions (a.k.a. affirmative action). As the Chronicle reports, this has infuriated ultraliberal commission chairman Mary Frances Berry.

Here’s the background. During an April 2003 meeting of the Civil Rights Commission, Kirsanow asked Berry to hold a briefing on Grutter v. Bollinger and Gratz v. Bollinger, the two cases challenging the University of Michigan’s use of admission preferences that were then pending before the Supreme Court. Berry thought “it would be interesting to have a briefing after they [the Supremes] decide the case.”

The Court handed down its ruling a few months later, last June. So, in July, Kirsanow asked for “a briefing on the ramifications of the Michigan decisions,” to which Berry replied, “Okay.” And then she added these obscure instructions: “And could you, if you think of any issues that you want to make sure they ask somebody to address, could you just let someone know, send an e-mail or do something with the staff director so he will know what you want covered so that he can, to the extent possible, and anybody else can do that, too. So that once you have figured it out, he can make sure that somebody covers whatever that is.”

Anyway, to prepare for the briefing, Kirsanow asked Christopher Jennings, his special assistant, to conduct a comprehensive legal analysis of the Grutter and Gratz decisions. Based on the law alone, Jennings identified many briefing topics of interest to the commissioner; he also concluded that there were too many to address in a single hearing. To narrow the list of topics, Jennings recommended that he survey field professionals to learn how “experts” are responding to the decisions.

Jennings thus developed a survey over the winter and asked Kirsanow’s permission to send the survey to 40 selective colleges. Kirsanow authorized him to do so. Jennings then printed and mailed the surveys on the agency’s stationery. This prompted the extraordinary response from Berry, who called the survey of college practices “illegal, immoral, and unethical.”

Why is Chairman Berry so upset?

The reason is that she knows that racial and ethnic admission preferences are very unpopular with the vast majority of Americans, and that if it became accepted practice for schools to reveal whether they discriminate and how much they discriminate, the resulting political and legal pressure would significantly curtail these preferences.

It is also very likely that providing this information will make many schools vulnerable to lawsuits. Because the fact of the matter is that race is typically used not in the limited, tie-breaking way that the Supreme Court purportedly advocates, but as a dispositive factor.

Peter Kirsanow is not alone in wanting admission preferences to be made more public. The Center for Equal Opportunity has drafted both federal and state legislation that would, respectively, require federally funded universities and state-run institutions to reveal whether and how they grant admission preferences on the basis of race and ethnicity. (Both bills are posted on CEO’s website.) The federal bill has been shared with Senate education committee staff, and the state legislation has been submitted to the American Legislative Exchange Council, an association of state legislators.

It is hard to see how anyone could object to these bills. Even those who support the use of racial and ethnic admission preferences cannot argue that such discrimination ought to take place in secret. Taxpayers have the right to know whether government and government-supported institutions are engaging in racial and ethnic discrimination and, if so, whether they are following the rules the Supreme Court has laid out limiting such preferential treatment.

In addition, the National Association of Scholars is asking its state affiliates to send out freedom-of-information requests to public colleges and universities in their respective states, asking them to provide the same kind of information.

It is heartening that some–and perhaps, or perhaps eventually, a majority of–members of the Civil Rights Commission want this information made available. After all, the original and highest purpose of the commission is to help investigate and shine a spotlight on racial discrimination. The commission, incidentally, has subpoena authority under federal law.

It would be best, of course, if schools would simply decide on their own not to consider race in deciding whom to admit. But if they insist on doing so, that discrimination will be dramatically limited if it has to withstand the glare of publicity. That’s why these new efforts to let the sunshine in are so important, and that’s why Mary Frances Berry is so angry.

Roger Clegg is general counsel of the Center for Equal Opportunity in Sterling, Virginia.

Members of the National Review editorial and operational teams are included under the umbrella “NR Staff.”

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