Color-Blind Affirmative Action

If patriotism is the last refuge of a scoundrel, is social science the last resort of a losing cause? We may not know the answer for some time, but there's no question that some of the heaviest hitters in the fight to preserve race preferences in college admissions are now desperately trying to convert the findings of social research into an argument for what lawyers for the University of Michigan call "the compelling need for diversity in higher education." With the strong backing of the Office of Civil Rights of the U.S. Department of Education, they are also trying to prove that some of the traditional measures colleges use in admission—test scores in particular—are biased and unrelated to college success.

The attempt is understandable, but it's likely to be an uphill fight, and not a pretty one. In the past half a dozen years or so, the news for the defenders of race preferences in such things as public contracting and university admissions has been almost invariably bad, both in the courts and at the polls. And with major new attacks now being launched, a lot of activists are fearful that the entire legal basis of race preferences in university admissions is in jeopardy, even for private institutions. That legal basis, which rests largely on Lewis Powell's opinion in the 1978 case Regents of the University of California v. Bakke, has already been declared invalid by one federal appellate court (in Hopwood v. Texas, 1996) and is now being challenged again in the two major reverse discrimination suits for which the University of Michigan has assembled its "compelling need" arguments. Among lawyers trying to persuade the courts, "compelling need" and "compelling interest" are magic phrases—trump cards to justify devices, like race preferences, that would otherwise be blatantly unconstitutional.

For anyone who has not kept score in this fight, here, roughly, is where things stand. In the past three years, voters in California and Washington State passed nearly identical measures outlawing racial preferences in all public employment, contracting, and education. Now Ward Connerly, the California Republican who was the chief backer of those initiatives, is running a campaign to get a similar measure on the Florida ballot next year—despite the objections of Governor Jeb Bush, who fears it will be divisive at the very moment his brother, running for president, is trying to broaden the base of the Republican Party. Connerly's real hurdle will be getting some version of his proposal past the legal scrutiny of a Florida Supreme Court that, in the words of Connerly's campaign manager Herb Harmon, "is much inclined to take initiatives off the ballot." But if Connerly succeeds with the judges, passage should not be too difficult; the polls show that more than 80 percent of the voters support it. Thereafter, Connerly says, he wants to try to run a similar measure in Michigan or Colorado.

But for the defenders of race preferences, the far bigger threat comes from the federal courts, which have imposed increasingly tough standards on every race-conscious measure that's not narrowly tailored to remedy a specific case of immediate past discrimination. In Adarand v. Pe–a (1995), the U.S. Supreme Court severely restricted the use of racial set-asides in federal contracting; in Shaw v. Hunt (1996), it overturned racial gerrymandering in drawing legislative and congressional districts; in Podberesky v. Kirwan (1995), it declined to review a lower court decision striking down a University of Maryland scholarship program for blacks. Then, last November, a federal appellate court in Massachusetts struck down the race-based admissions formula at the selective Boston Latin School, the oldest public school in the country. And, in a further sign of the times, the NAACP, apparently fearful that the Boston case would become an unfortunate national precedent if the Supreme Court declined to hear it or ruled against it, persuaded the Boston School Committee not to appeal the decision. Meanwhile, suits filed by the conservative Center for Individual Rights (CIR) challenging race-based admission policies at the University of Michigan, the University of Michigan Law School, and the University of Washington Law School are making their way through the federal courts. In all three, CIR not only charges violations of Powell's Bakke standard, which permits the use of race as one "plus factor" in choosing an intellectually and socially diverse student body, but also, following the Hopwood decision, attacks Bakke itself as "a singular" opinion that is no longer constitutionally valid—if indeed it ever was. Powell, CIR argues, was the swing justice on a Court that was sharply divided, and while his decision determined the outcome, no other judge supported his reasoning.

Constitutional lawyers like Professor Robert Post of the Boalt Hall Law School at Berkeley believe that the federal courts will "ratchet up" Bakke, meaning that they will make it even tougher to use race, without actually overturning the Bakke decision. But it could just as easily be argued that Powell never contemplated an undergraduate admissions system that used race as blatantly as the University of Michigan or, until the regents stopped it in 1995, the University of California. Michigan has acknowledged that while it doesn't have nearly enough places for every qualified applicant at Ann Arbor and thus rejects thousands of qualified whites, it does admit virtually every qualified black. The chances for admission for whites with high grades and test scores are thus considerably lower than the chances for blacks with lower scores.

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Color-Blind Affirmative Action?

What would a school that sought out disadvantaged students based on economic status—rather than racial background—look like? Very different from one that uses race-based affirmative action. At least, that's the conclusion one would draw from Lowell High School, in San Francisco. The students entering the elite magnet school this fall are the first class to be admitted since the school district agreed last February to end its racial desegregation consent decree. Under the new admissions policy—which may take special account of applicants' economic background but not their race—the number of African-American eighth graders accepted to the Lowell class of 2003 dropped from 5.6 percent last year (44 of 789 accepted students) to just under 2 percent (17 of 864 accepted students). The percentage of accepted Latino students fell from 11.4 percent to 5.4 percent.

The change in policy is the result of a 1994 lawsuit brought by Chinese-American families who challenged the city's 1983 desegregation ruling, which capped admission at magnet schools like Lowell at 40 percent of any ethnic group. The plaintiffs argued that, due to their relatively large numbers, Chinese-American children had a more difficult time getting into the schools of their choice. At exam schools like Lowell, Chinese- American students had to score significantly higher than even Caucasian students to secure a slot.

In response to the lawsuit, Lowell voluntarily eliminated race quotas in 1996. Since then—at least until this year—they had been using a system whereby applicants were assigned points based on grades and test scores, up to a maximum of 69 points. Any student who scored above 65 was automatically accepted. Once all the high scorers were accepted, the remaining seats (generally about 20 percent of the class) went to students whose lower scores were boosted by the addition of certain "diversity points." African-American, Latino, and Native American students received bonus points, as did students coming from disadvantaged backgrounds or students who demonstrated high indications of success despite less-than-stellar academic records. Slots made available by students who were accepted but didn't matriculate almost always went to African-American or Latino candidates, regardless of whether they had made the cut-off point.

But following the February settlement, which was approved by a U.S. District Court, San Francisco schools agreed officially to phase out race caps by 2002. The Lowell School agreed to go totally "color-blind" this fall—but also announced that it would remain committed to maintaining a diverse student body. How do you preserve racial diversity without considering race in the equation? Lowell administrators came up with some creative responses.

The list of "value-added" circumstances grew longer. Students from particular neighborhoods were given a bonus "diversity" point. Living in public housing or participating in the free-lunch program earned students a point. Points went to recent immigrants and non-native English speakers. Children whose parents did not complete high school could expect to move up a notch on the admissions scale, as could children from single-parent homes.

Yet despite these efforts, the admissions process resulted in dramatically fewer invitations to African-American and Latino students. And as of this writing, the school committee had no formal plan for evaluating the issue of diversity at Lowell. With African-American and Latino admissions down by more than half, the question may have to be re-examined—the judge indicated that if resegregation were to occur in the aftermath of the caps' elimination, the case should be reopened. Of course, with traditional race-based affirmative action programs coming under fire around the country, San Francisco deserves credit for trying to find new solutions to complex racial problems. And the data so far are limited. But if Lowell turns out to be typical, it looks like progressives who support affirmative action in education still have their work cut out for them.

—Joanna Mareth

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The university justifies the policy by invoking the educational and social benefits of "diversity," a word that comes from Powell's opinion and which at the time of the Court's ruling meant a wide range of backgrounds, experiences, and interests. In the two decades since Bakke was decided, however, the meaning of the word has been effectively narrowed to refer primarily, if not entirely, to race. And it's in the context of that new meaning that a lot of people are now trying to enlist social science research.

Late in May some of the most prominent civil rights leaders—lawyers, academics, social activists—met at Stanford to discuss the draft of a document outlining the evidence. Among them were: Bill Lann Lee, President Clinton's embattled acting assistant attorney general for civil rights; Theodore Shaw, the associate director-counsel of the NAACP Legal Defense and Education Fund; William Taylor, vice chair of the Leadership Conference on Civil Rights; and William T. Trent, a University of Illinois sociologist who has been a frequent expert witness on the educational benefits of school integration and diversity. The trouble is that neither the draft—which is titled "Compelling Interest: Examining the Evidence on Racial Dynamics in Higher Education"—nor the materials submitted to the courts by the University of Michigan, nor the various other pieces of purported scholarship produced in the cause are likely to be very persuasive.

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In some cases, the research, much of it conducted by advocates in the form of attitude surveys based on predictable questions, seems to prove the obvious: that students who attend integrated colleges and classes will be exposed to a wider spectrum of ideas and views, thus learning more and becoming more open to interaction with others. Since many students do come from highly segregated schools and communities, it's argued, a diverse university campus may be the only opportunity for such exposure. Graduates of such programs, according to the studies, are more likely to live in integrated communities, which is obvious—a little like saying that those who go out for tennis in college are more prone to be playing tennis at the age of 60.

In others, the research blithely ignores contrary evidence and experience. A few years ago, Michigan conducted a longitudinal survey of those who entered college in the fall of 1990, which found that while students grew slightly more positive about affirmative action, 66 percent of whites agreed that "students of color are given advantages that discriminate against other students." More than half of the whites and over a third of the black students in the survey believed that the university's efforts to foster diversity caused more division than understanding. The report makes no mention of this study. Nor does any of the research even allude to the record of racial tension at places like the University of Massachusetts or to the speech codes and the other attempts to end tensions by enforcing political correctness at places like the University of Pennsylvania or the University of Wisconsin, or, indeed, at Michigan itself, where a restrictive speech code was struck down by a federal court back in 1989.

None of those things argues against integration or diversity; they just cast doubt on the contention that when an admissions office leans on the scale to bring in more underrepresented minorities, wonderful things automatically follow. At the very least they reinforce arguments of conservatives like Shelby Steele that where the admissions process is perceived to be unfair and the resulting decisions are regarded as illegitimate, the price in resentment may be intolerably high. In any case, even if the social science evidence were more powerful, it is unlikely that it would persuade the courts that racial diversity on campus is a compelling state interest justifying all sorts of decisive race preferences in the admissions process. One of the people at Stanford asked the telling question: How many people of which color do you need to achieve diversity? To which one might have added the question: How heavily can you lean on the scale to achieve it? Michigan allows as much as 20 points of a possible 150 to be based on race—less than the total weight given to grades, but as much or more than that given to most other categories. That surely isn't what Powell had in mind.

The controversy does raise one important and possibly portentous issue. What precisely is merit and how should it be judged? That question goes far beyond the reliability of measures like SAT scores, which are coming under increasingly sharp attack, even from the feds at the Office of Civil Rights, who recently put colleges on notice that "the use of any educational test which has a significant disparate impact on members of any particular race, national origin or sex is discriminatory and a violation [of federal law] unless it is educationally necessary and there is no practicable alternative . . . ." In The Shape of the River, William G. Bowen and Derek Bok's defense of race preferences in the Ivy League and other elite institutions, they contend that merit has little bearing on who "deserves" to go to college and a lot to do with the individual's potential contribution to the richness of his or her institution and, ultimately, his or her value to the larger society. That's more than a hypothetical issue since every judicial step to curb race preferences will increase pressure to redefine merit by de-emphasizing tests and similar quantitative measures and finding other ways to favor minority admissions in selective institutions.

Which, of course, is one of the reasons that race preferences are such a hot issue at elite colleges that want to select students with astronomical test scores while, at the same time, maintaining some legitimizing ethnic diversity. At the Stanford meeting, there were dire warnings about the impending resegregation of American higher education if what the participants call affirmative action is struck down.

But the issue has little bearing on the majority of institutions, which are, at best, only marginally selective. And while Bowen and Bok assert that a great many black leaders in this country are beneficiaries of affirmative action, most U.S. leaders—in business, in state and local government, in civic organizations—never saw the inside of an Ivy League college. Nor, of course, does it apply to the huge number of blacks and Hispanics who have neither the high school preparation nor the test scores to get them into the pool of candidates from which relatively selective public universities like Michigan or the University of California or the University of Virginia choose their students. The goal of a pluralist and multiracial society has now been broadly accepted by most American institutions. Only in the most indirect and symbolic sense does diversity in elite universities affect the pattern of opportunity, and of integrated living and working, for the vast majority of Americans. For them, the debate about standards at elite institutions is largely irrelevant.


Peter Schrag

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