Tough Times for Preferences

Civil Rights Practice Group Newsletter - Volume 3, Issue 1, Spring 1999
By Roger B. Clegg
May 01, 1999

For years, the use of heavy racial and ethnic preferences was the dirty little secret of college admissions offices. Those days are ending. The issues now are, first, how long can individual offices hide their secret? Second, can they defend this practice, legally or politically, when it is revealed? And finally, assuming they are forced to abandon discriminatory admissions standards, what will the new standards be? All three issues are quickly coming to a head.

In January, the Center for Equal Opportunity, a Washington, D.C.-based think tank, released its eighth study of racial and ethnic preferences in higher education, finding evidence of "a strong degree of preference given to blacks over whites" at the top undergraduate colleges and universities in Virginia. This evidence is based on admissions data obtained from the schools themselves. CEO's earlier studies uncovered evidence of discrimination at public colleges and universities in California, Colorado, Michigan, North Carolina, and Washington, as well as the service academies at West Point and Annapolis.

Preferences are not limited to undergraduate institutions. A state think tank—the Lincoln Center for Public Service in Delray Beach, Florida-released a study early this year documenting "Race as an Admissions Factor in Florida's Public Law and Medical Schools." It estimated that 1,746 white law-school applicants (roughly 29 percent of all rejected white applicants) were denied admission despite presenting GPAs and LSATs that would have given them a better than 50 percent chance of acceptance had they been black. A total of 708 white students were denied admission despite qualifications that would have given them a better than 90 percent chance of acceptance if they were black.

The liberal apologists for preferences have begun to give up the ghost. In their highly publicized book, The Shape of the River: Long-Term Consequences of Considering Race in College and University Admissions, William G. Bowen and Derek Bok assert that preferences are used by "only about 20 to 30 percent" of four-year schools. It is not very reassuring to be told that one of every four colleges has a policy of formal racial discrimination. Besides, this understates the problem, since Bowen and Bok don't count schools that simply lower their admissions criteria to ensure a "diverse" student body. Moreover, CEO's studies indicate that the use of preferences extends down into less selective schools, too.

Having been caught, the administrators now deny that they have done anything wrong in the first place. Frequently they will deny that their policies should really be considered "discrimination," since they don't use hard and fast "quotas," admit only "qualified" students, and consider race as "just one factor." But this is no denial at all, since discrimination doesn't require quotas, need not be aimed at unqualified students, and can be used in conjunction with other, legitimate criteria.

Politically, the defense is not working. Voters by healthy majorities in California and Washington have now banned preferences in college admissions, and similar bars are likely to be proposed soon in other states. The proponents of preferences complain that the voters get confused when preferences and discrimination are labeled preferences and discrimination, instead of the vague and ambiguous "affirmative action"—an incredibly disingenuous argument, even for the civil-rights lobby.

Legally, the pro-preference forces are in trouble, too. Racial and ethnic classifications are defensible only if they serve some "compelling" interest, and the only candidates are remedying past discrimination and diversity. But the former becomes less and less plausible as slavery and the Jim Crow era recede into the past. Today's college applicants were born in 1981, long after the triumph of the civil rights movement.

That leaves the diversity rationale, but it is proving a weak reed, too. Its legal pedigree is shallowly rooted in Justice Powell's 1978 opinion, joined by no other justice, in the Bakke case. Diversity arguments have recently been rejected, in one context or another, by federal courts of appeals in the First, Third, Fifth, and District of Columbia Circuits.

Boston Latin, defendant in the First Circuit decision, announced in February that it will not be taking its case to the Supreme Court. It had initially planned to do so, but civil-rights groups and the Clinton administration talked them out of it. They're afraid that the diversity argument won't fly in the Supreme Court. The same fear led civil-rights groups to settle the Third Circuit's Piscataway decision on the eve of its argument before the Supreme Court last year.

In another retreat, the NAACP in February decided to drop support of the race-balancing requirements that for years had capped the number of Asian students who could get into the top public schools in San Francisco. "The era of racial bean-counting is over," said the Asian American Legal Foundation, which had been formed to press Chinese Americans' discrimination claims.

In Richmond earlier this year, the Fourth Circuit considered arguments on the issue. In this case, a federal district judge had rejected the diversity rationale when a Virginia school board tried to invoke it for kindergartners. The Fourth Circuit has already rejected race-exclusive scholarships at the University of Maryland.

The legal challenges will continue. The Center for Individual Rights, which successfully challenged race-based admissions in Texas and now has lawsuits in Michigan and Washington, published a two handbooks in January—one aimed at college students who might want to challenge their schools' use of preferences, and the other at trustees who are similarly inclined. As the legal decisions against preferences mount, the latter group will become more and more vulnerable to personal liability judgments when their schools discriminate. This should give pause to officials in the Texas system, which is now setting up race-based scholarship funds through alumni and other "independent" organizations in order to circumvent the Fifth Circuit's Hopwood decision.

So preferences are exposed, unpopular, and illegal. Isn't the game about over?

Not quite. When preferences were thrown out by the federal courts in Texas, the state responded by changing its universities' admissions criteria, so that students in the top ten percent of every high school class could get into the state university of their choice. California is considering some similar proposals, which would place less emphasis on SAT scores, just as Texas is. A lawsuit filed in February by a number of civil-rights groups against the University of California at Berkeley shares the same goal.

But is it just a coincidence that it is poor SAT scores that disproportionately keep blacks and, to a lesser extent, Hispanics out of the top California schools? Of course not. There is no doubt that the reason Texas changed its system was to get around the results that colorblind admissions had on blacks and Hispanics, and there seems to be little doubt that the flurry of proposals in California shares that impetus.

Which makes them illegal. The law is quite clear that the government cannot manipulate selection criteria in order to achieve a particular racial or ethnic mix. This is so even if the criteria are neutral on their face. If a state university decided to rely more heavily on high-school grades and to ignore SAT scores in order to put a cap on the number of Asians and Jews, that would clearly be illegal. This is factually very close to what Texas has done and what California is considering. It is, in any event, legally indistinguishable.

The politicians and educators ought to stop playing games. They have been intimidated by the civil-rights establishment into an obsession with the racial and ethnic makeup of just about everything. The dirty little premise that all three groups share is that blacks and Hispanics cannot be expected to succeed if they are held to the same standards as everyone else. This is an incredibly condescending and untenably pessimistic, given the barriers that these minorities have already overcome.

Roger Clegg is general counsel of the Center for Equal Opportunity, a Washington, D.C., think tank.