The law school at the University of Mississippi is in a tough spot, torn between its constitutional obligations and its deep commitment to race-based affirmative action. Its public-relations literature is peppered with references to “historical disadvantages,” “critical masses,” and “plus factors.” Its administrators ceaselessly extol diversity. And its admissions policies declare a steadfast intent “to admit classes that substantially increase the proportion of members of underrepresented and historically excluded groups.”
In pursuing this goal, however, the school struggles under the burden of various constitutional constraints that have been defined by the U.S. Supreme Court. Among other things, these constraints prohibit the enactment of rigid quotas or points systems that would give minority students a mechanical boost in the admissions process. This makes life significantly more difficult for admissions officers and the pro-diversity pressure groups that surround them.
But some professors at Mississippi’s law school seem to have found a cunning solution: Even as the school itself has taken steps to create the appearance of constitutional compliance in its admissions policies, the faculty has passed a resolution seeking to establish a de facto racial quota. Passed in December 2005, the resolution declares that “underrepresented minority students” should be admitted in sufficient numbers to compose a “critical mass” of between 15 and 20 percent of the student body.
John M. Czarnetzky, a law professor who was present when the faculty resolution was being debated, has written an open memo (read it here) exposing how the resolution opens the door for unconstitutional admissions practices. While certain parts of the resolution are carefully worded to create the impression of diligent constitutional compliance, others are designed to force the adoption of rigid minority-admissions practices that plainly violate the Constitution. “To the extent that the resolution requires a result,” Czarnetzky writes, it is unconstitutional–and the faculty members have made it abundantly clear that they expect results. He explains:
In discussions in the ad hoc committee itself, and more boldly in the full faculty, proponents [of the resolution] repeatedly asserted that “the purpose of the resolution is to deprive the [admissions] committee of discretion” and words to that effect. Moreover, one faculty member informed the full faculty that, if the 15-20 percentfigure is not met, he would come to the faculty and assert that the admissions committee had failed to meet that goal because they “are against affirmative action” and are the “only thing standing in the way of” achieving that level of minority enrollment.
Given these forthright assertions that the resolution is intended to handcuff the committee by taking away discretion in admissions decisions, and the assurance that strong-arm tactics tinged with allegations of racism would be used if the resolution’s “goals” are not met, it is obvious to me as a member of the committee that the proponents of the resolution would use its “goals” as a hammer to enforce a quota.
Czarnetzky’s critique breaks through the mixture of vagueness and dishonesty that pervades the faculty resolution. The resolution does not explicitly state how rigidly the 15-to-20 percent quota should be applied, nor does it say exactly how admissions officers should attempt to fill it. This vagueness provides an effective defense against outside criticism, because it makes it almost impossible for an outsider to nail down exactly how the faculty’s goal for minority admissions is meant to be reached. But Czarnetzky’s contextual observations reveal that–in the words of his memo–”the policy is intended to deprive the [admissions] committee of discretion in the admission of African-American applicants in favor of a quota.”
The resolution uses deceptive language to suggest that the faculty’s favored approach to racial preferences is of the same type that was expressly approved by the Supreme Court in Grutter v. Bollinger. In that decision, the Court ruled that the University of Michigan could use narrow, non-rigid racial preferences in order to achieve a more diverse student body. It made this ruling on the basis of a study that the University of Michigan presented, in which it claimed to have found that greater racial diversity among its students would conjure up certain educational benefits.
Mississippi’s faculty resolution makes a transparent attempt to wrap itself in the language of Grutter, claiming that its racial-preference program is motivated, just as Michigan’s was, by a desire to achieve a “critical mass” of minorities that would create diversity-related educational benefits. Even a cursory examination of the evidence, however, raises serious doubts about this assertion. Ole Miss–unlike Michigan–has not conducted a single study of the educational benefits of diversity. Czarnetzky writes that he and his fellow faculty members have “never discussed the tradeoffs between diversity and academic excellence in our student body . . . We have never, as a faculty, engaged in any type of detailed fact-finding or even surveyed faculty opinions on critical mass.” Thus, as far as anyone can tell, Mississippi’s 15-to-20 percent figure for minority admissions is not based on any solid scholarship at all–it is entirely arbitrary.
Czarnetzky reports that the proponents of the resolution have relied primarily on arguments that are quite unrelated to educational benefits. Instead of focusing on the educational advantages brought on by diversity, they have openly advocated increased minority admissions in order to (in Czarnetzky’s words) “obtain desirable social goals such as increasing the number of minority lawyers in the state, to make up for previous exclusion of minorities from the law school, etc.” Indeed the faculty resolution itself makes a special point of calling for the admission of individuals from racial groups that have been “historically discriminated against.”
The situation at Ole Miss reflects a national phenomenon: The push for strong racial preferences in college admissions is primarily motivated by a deeply felt desire to serve a concept of social justice in which individual black applicants must be given special treatment to compensate for the oppression that their racial group once faced. The problem is that the courts have not certified this remedial reasoning as a sufficient justification for schools to discriminate among applicants on the basis of race.
So, in order to continue employing racial preferences, schools have had to adopt a rationale that is quite different from the actual reason they support the preferences. In many schools’ admissions policies, language about the educational benefits of diversity seems to be added almost as an afterthought–and a convenient one, too, given how helpful the diversity rationale is in deflecting constitutional criticism.
There is a palpable dishonesty in this, which is symptomatic of a deeper tension that bedevils colleges nationwide. Professors and administrators see the continuation of racial preferences as a moral imperative, and they see this imperative being thwarted by the constitutional principle of equal protection. They are thus driven to undermine this principle with zeal and ingenuity: The more they push the limits of the Constitution, the more their consciences are soothed by the perceived rightness of their social agenda. And, to the extent that we wish to resist this agenda, it falls to us to push back.
–Anthony Dick is an associate editor at National Review.