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  • Op-ed published in The Chronicle of Higher

Affirmative Action: Colleges Should Take No Comfort in the Supreme Court's Reprieve

Rulings on affirmative action impact Asian Americans.

Note: This op-ed was originally published in The Chronicle Review magazine, Volume 49, Issue 45, Page B11. A full copy is now available online on The Chronicle of Higher Education website.

Colleges and universities nationwide dodged a bullet in June when the Supreme Court's split decision permitted the limited use of race in admissions for another 25 years. But they would do well to cut the celebration short and begin planning now for the eventual phaseout of race-based admissions. Public opinion will demand it, voters and legislators may compel it, and continued litigation will necessitate it, long before the court's respite ends.

In striking down racial-admissions preferences at the University of Michigan's liberal-arts college in Gratz v. Bollinger while upholding its law school's race-based policies in Grutter v. Bollinger, the court found campus diversity compelling enough to justify some consideration of race. But the court subjected race-based admissions to new limits in time and scope.

Taken together, the twin decisions make it clear that race must be used in a "flexible, nonmechanical way" and cannot generally be a "decisive" factor. Instead, colleges must engage "in a highly individualized, holistic review of each applicant's file, giving serious consideration to all the ways an applicant might contribute to a diverse educational environment." As Gratz stated, the "critical criteria" in such a review "are often individual qualities or experience not dependent upon race but sometimes associated with it." Yet higher-education institutions may not treat race as if it "automatically ensured a specific and identifiable contribution to a university's diversity."

Moreover, the Supreme Court required that colleges engage in "serious, good-faith consideration of workable race-neutral alternatives that will achieve the diversity the university seeks." Such alternatives typically involve taking socioeconomic, educational, and other types of disadvantages into account, whether explicitly or through indirect mechanisms like percentage plans. The court, noting the "wide variety of alternative approaches," said each institution must "draw on the most promising aspects of these race-neutral alternatives" and must conduct "periodic reviews to determine whether racial preferences are still necessary" in order to "terminate its race-conscious admissions program as soon as practicable."

In addition, the justices called for "sunset provisions" and a 25-year overall time limit on the use of racial preferences to achieve diversity. While some have deemed that limit to be the court's hope rather than an essential part of its holding, that reading ignores the immediately preceding paragraphs, which emphasize that the grant of compelling-interest status to student diversity is conditional on that limit. The bottom line is that any higher-education institution still using race-based admissions 25 years from now will be doing so without the Supreme Court's sanction.

Now it's up to the nation's colleges and universities. If they recognize that the court considers racial admissions preferences "potentially so dangerous" and that it issued a limited reprieve rather than a ringing endorsement, the decisions will very likely be remembered as a road map for peace between the higher-education community and critics of race-based admissions. However, if Justice Ruth Bader Ginsburg's prediction in Gratz proves prophetic, and colleges view the Michigan decisions as merely an excuse for less "candor" and more "camouflage," the decisions will instead be a road map for bitter and costly litigation. Justice Antonin Scalia's opinion in Grutter identifies enough prospective issues to keep a small army of attorneys busy until retirement.

The early indications from academe are not encouraging. Colleges from Ann Arbor to Austin are celebrating the Michigan decisions, seemingly oblivious or indifferent to a holding which means that many of them have been violating the constitutional rights of applicants for decades. Colleges should be vowing to make the fundamental changes necessary to right that wrong -- like broadening their definition of diversity -- and promising to move toward race-neutral alternatives with all deliberate speed. Instead, most are reflexively insisting that they never used race in a mechanical or decisive manner, or are proclaiming that only minor tweaks will be necessary to comply with the court's new standards.

Such talk is particularly perplexing coming from large universities, where many thousands of applications make the mechanical use of race the norm, and from the nation's most selective colleges, where the magnitude of the racial bonus makes it often decisive. Perhaps some institutions are simply not yet informed about what the Michigan decisions require. Perhaps others are being disingenuous.

Take the University of Michigan, which, until June 23, contended that "the volume of applications ... make it impractical for the [undergraduate college] to use the [individualized] admissions system" upheld in Grutter. Now Michigan is telling the nation that it will have exactly such a system up and running at the undergraduate college by September. Maybe the college is hoping to get by with the sort of cosmetic changes it tried twice before, after its admissions policies first came under fire. But other universities should take note that those changes failed to satisfy the Supreme Court.

The lack of a bright line in the Michigan decisions may tempt other colleges to try to slide by with superficial alterations in their admissions policies. But, in fact, the murkiness of the decisions make fundamental changes all the more important. While it may be safe to maneuver close to a bright line, it's wise to stay far away from a fuzzy one, especially when crossing it invites years of costly litigation or the corrupting influence of deceit.

Similarly, higher-education institutions should not be lulled into complacency by the court's arguably relaxed application of the Constitution's strict-scrutiny test in the Grutter decision. Other judges will probably take the court at its word that it was applying an "exacting standard" and will be less deferential to the "good faith" of a defendant college, with regard to both the consideration of race and the instituting of race-neutral alternatives. Given old habits and a line that's hard to pin down, it will be easy for institutions to slip -- despite their best intentions -- into race-based admissions practices that a judge could characterize as mechanical or decisive.

Among the colleges that choose, nonetheless, to continue using race-based admissions, a number of practices will make them particularly vulnerable to litigation brought by both public-interest law firms and private lawyers. Such practices include:

  • The continued use of race in a mechanical manner, despite eliminating a formal point system. For example, a college may not assume that "a particular applicant, by virtue of race or ethnicity alone, is more valued than other applicants."

  • Individualized review that is limited to a subset of applicants, who have been identified through a system that mechanically uses race.

  • Failure to give nonminority applicants "the opportunity to highlight their own potential diversity contributions."

  • The treatment of nonracial diversity factors as less important than race and ethnicity. In part, Michigan's undergraduate admissions policies were found to be unconstitutional because "the points available for other diversity contributions ... are capped at much lower levels."

  • The admission, by a selective institution, of virtually all qualified minority applicants, thus indicating that race is being used as a "decisive" factor. A large disparity between the average grades and test scores of minority and nonminority admittees, where such a disparity can be explained only by a race-based, "two track" admissions standard.

Reintroduction of race-based admissions by a state that successfully used race-neutral policies to promote diversity. Such a state cannot convincingly claim that a "serious, good-faith consideration of workable race-neutral alternatives" has revealed that "racial preferences are still necessary."

Litigation is not the only worry for colleges that continue to use race-based admissions. Perhaps their biggest concern should be public opinion. In recent years, poll after poll -- by the Gallup Organization, NBC, Newsweek, and the Los Angeles Times, to name just a few sources -- has shown that the overwhelming majority of Americans of all races oppose the use of race in admissions. For example, a national survey this year by The Chronicle found that only 3 percent of white people, 8 percent of Hispanic people, and 24 percent of black people strongly support the use of racial preferences in college admissions. Similarly, a 2001 Washington Post poll found that 94 percent of white people and 86 percent of black people disagree that "race or ethnicity should be a factor when deciding who is ... admitted to college." That shift in public opinion is probably the greatest legacy of the Michigan cases, which ended the myth that race was being used as merely a tie-breaker and focused national attention on the success of race-neutral alternatives.

Although the nation's elite institutions -- from General Motors to Harvard -- lined up on Michigan's side and may well have influenced the Supreme Court, they clearly failed to persuade the American people. The result is a huge gulf between public and elite opinion, an inherently unstable situation reminiscent of a royal family that is blissfully unaware of how out of touch with the common people it has become. Equilibrium is restored only when change is forced upon the ruling elite -- in this case, probably by state ballot initiatives, legislation, or the threat thereof.

Ballot initiatives like California's Proposition 209 and Washington State's I-200 will be the public's first line of attack. Such measures allow the voters to take the issue of racial preferences out of the hands of timid politicians. Just two weeks after the Michigan cases were decided, Ward Connerly -- the principal figure behind Prop 209's passage -- announced a campaign to put a similar initiative on the Michigan ballot. If ballot initiatives prove popular in a number of states, as appears likely, politicians will get the message. Legislative proposals to curb racial preferences will follow on the federal, state, and even local levels. That's exactly what resulted in Florida's abolition of race-based admissions. Republican lawmakers in other states and even in Congress may be motivated to move quickly rather than see antipreference initiatives, which increase minority turnout, on the November 2004 ballot.

Although few expect Congress to enact an outright ban on race-based admissions -- for example, by amending Title VI of the Higher Education Act to more clearly prohibit all discrimination -- smaller legislative or regulatory steps might prove very popular. For example, Congress could provide monetary incentives to colleges that use race-neutral alternatives. Or perhaps Congress could enact a mandatory timetable for phasing out race-based admissions, in order to put more teeth into the court's 25-year limit and sunset-provision requirement.

Similarly, Congress or the U.S. Department of Education could require colleges to file progress reports, documenting their "periodic reviews" and other "good faith" efforts to carry out race-neutral admissions. Finally, federal or state lawmakers could require transparency for race-based admissions policies, including statistics on admitted students' grades and test scores, categorized by race. What politician will want to explain why he opposes transparency or believes that racial preferences must continue beyond 2028?

Given the risk of litigation, the increasing opposition of the public, the flowering of ballot initiatives, and the possibility of state and federal legislation and regulation, the political, social, and financial costs of maintaining a race-based admissions system will surely climb. Although those costs will make race-neutral alternatives increasingly attractive, I do not underestimate the power of constituencies in the academy that find such alternatives ideologically repugnant. Nonetheless, with Gratz and Grutter decided, there is no longer any strategic reason for those in higher education to dismiss the success of race-neutral policies in California, Florida, Georgia, Texas, and Washington State. Thus, we can hope that colleges in other states will take seriously the Supreme Court's command to "draw on the most promising aspects of these race-neutral alternatives."

Prominent in the battle of statistics that surrounded the Michigan cases were conflicting figures about whether minority enrollment in those five states was up or down. However, through the clutter, one thing is clear: Even at the flagship universities and professional schools in those states, race-neutral alternatives were just as successful as race-based policies in achieving a critical mass of underrepresented minorities -- defined by the University of Michigan in testimony as at least 10 percent. Those states have emphatically proved that racial preferences are not the only way to achieve the goal of racial diversity, and their experience should inspire other higher-education institutions to embrace, rather than resist, the inevitable phaseout of race-based admissions.

In many ways, it is an ideal time for colleges to pursue race-neutral alternatives. It is but a small step from individualized reviews, in which "the critical criteria are often individual qualities or experience not dependent upon race but sometimes associated with it," to a system that eliminates racial preferences but preserves racial diversity by taking socioeconomic, educational, and other types of disadvantage into account. Such disadvantage-based preferences enjoy wide support in public-opinion polls, perhaps because they produce the kind of deep diversity that is utterly lacking at most of the nation's elite colleges and universities.

Higher-education institutions that begin to embrace alternatives now will enjoy not only that more-profound diversity, but also the luxury of making a gradual and carefully studied transition away from race-based admissions. Colleges and universities that resist change, on the other hand, will find themselves decades behind and scrambling to catch up as the court's 25-year reprieve runs out.


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