By Michael S. Greve
The Chronicle of Higher Education, March 19, 1999
In a closely followed civil-rights lawsuit, Smith v. University of Washington, highly qualified applicants to the 1994 through 1996 entering classes at the University of Washington Law School contend that the school rejected their applications on account of their race, which is white. The plaintiffs’ day in court has been postponed: On the eve of a trial scheduled to begin last month, the district judge designated important legal issues in the case for an immediate, pre-trial appeal.
Smith is — or rather was — the first of three student-admission cases scheduled for trial in 1999. (My organization, the Center for Individual Rights, is serving as plaintiffs’ counsel in all three cases.) Pending cases against the University of Michigan and the University of Michigan Law School are still docketed for trial in district court later this year. Smith, by contrast, will be considered by the U.S. Court of Appeals for the Ninth Circuit. Among the questions to be examined by the appellate court is the central legal issue in the affirmative-action debate, and the one most in need of resolution — the constitutional status of “diversity” as the basis for using racial preferences in admissions.
In his opinion in Regents of the University of California v. Bakke (1978), Justice Lewis Powell wrote that a “compelling” interest in campus diversity justified the use of race as a narrowly tailored “plus factor,” though not in the form of a racial quota or overt set-aside. No other Justice signed Powell’s opinion, and the Supreme Court has never explicitly embraced it. But since the Court has also not explicitly repudiated Powell’s designation of diversity as a compelling interest, colleges and universities insist that racial preferences in admissions are still legal.
Unlike many other so-called “reverse-discrimination” cases, the Smith appeal squarely presents the question of whether Justice Powell’s opinion is binding constitutional law. The case may thus decide the future of racial preferences in higher education — and, at long last, spell their demise.
Three years ago, in Hopwood v. State of Texas (in which my center also served as counsel to two of the plaintiffs), the Fifth Circuit held that race-based preferences in higher education are permissible only as a narrow remedy for the continuing effects of specific past discrimination. The defendant, the University of Texas School of Law, did not demonstrate the need for such remedial preferences. Nor, the circuit court said, could the law school rely on its interest in “diversity” to justify racial preferences. Siding with the plaintiffs, the Fifth Circuit declared that Justice Powell’s Bakke opinion was not the law of the land.
At the time, higher-education experts described Hopwood — the first substantive decision concerning race-based preferences since the Supreme Court’s Bakke decision — as “the A-bomb” that would destroy higher education and produce lily-white universities. The metaphor has proved a wild exaggeration. The University of Texas is neither extinct nor, for that matter, lily-white. Cheryl Hopwood is still litigating — a little-known fact — to obtain meaningful redress for the institution’s proven, intentional race discrimination. The Supreme Court declined to hear an appeal of the Fifth Circuit’s ruling, meaning that Hopwood, so far, remains limited to the states covered by the Fifth Circuit.
Still, Hopwood has had a profound impact on civil-rights law, principally by producing further challenges to race-based policies in public education (and, though beyond the scope of this article, in employment). We at the Center for Individual Rights always thought of Hopwood as an opening salvo. The Washington and Michigan cases are part of a larger strategy to put the consideration of race beyond the reach of the state.
But Hopwood also produced independent legal challenges. In a strongly worded opinion in Wessmann v. Gittens (1998), the U.S. Court of Appeals for the First Circuit invalidated race-based admissions preferences at Massachusetts’ prestigious Boston Latin High School. Parents in Arlington, Va., and Rochester, N.Y., have successfully challenged race-based policies for assigning students to public primary and secondary schools. Another such case, from Maryland’s Montgomery County, produced a lone district-court decision sustaining such practices. Both the Arlington and the Montgomery County cases are pending before a federal appeals court. Additional plaintiffs have challenged race-based scholarships at the University of Oklahoma and admissions practices at the University of Georgia. In the latter case, a district court has found that the university’s past practices violated the Constitution. In all of those cases, neither the plaintiffs nor the attorneys are linked to an organized ideological campaign. Hopwood helped to generate their lawsuits by setting a precedent — and by showing that universities (and now school districts) can be beaten.
The post-Hopwood rulings have left the diversity rationale alive, but not at all well. No court in a post-Hopwood education case has followed the Fifth Circuit in declaring diversity-based race preferences unconstitutional. (Only the Court of Appeals for the District of Columbia has done so, in a case concerning employment in the broadcasting industry.) On the other hand, with the single exception of the Montgomery County case, no court has affirmed or endorsed the continued constitutional validity of the diversity rationale. Rather, the courts have sidestepped the question, and instead have found the racial preferences and student-assignment practices under consideration unlawful even under Justice Powell’s contested Bakke opinion.
Taken together, the cases indicate the collapse of “diversity” as a viable basis for broad-based racial decision making in education. “Diversity” as such, said the courts that decided the Boston, Georgia, and Rochester cases, is merely a slogan — a “facile talisman,” an “abstraction,” “attractive labeling,” “travel[ing] only on generalizations.” Permitting racial classifications to advance a vague notion of diversity is dangerous because it invites the use of race for its own sake. In an oft-quoted phrase of Justice Sandra Day O’Connor’s, a generalized interest in diversity would permit the use of “unconstrained racial preferences, linked to nothing more than proportional representation of various races.”
The judiciary’s insistence on a precise definition of “diversity,” and on documentation of the need to achieve it, confronts competitive colleges and universities with an enormous problem. Few black students would be admitted to elite institutions if those colleges and universities were to use their existing criteria for admissions (largely, though not exclusively, test scores and grade-point averages) in a race-neutral manner. According to The Shape of the River, William G. Bowen and Derek Bok’s paean to racial diversity, some 60 per cent of black students at elite colleges and universities owe their admission to race-based preferences. Even an “honest Bakke” regime, in which race works as a tie-breaker in individual comparisons among applicants, would preclude elite institutions that rely heavily on grades and test scores from enrolling what they would consider a respectable number of black students. Substantial racial preferences allow them to address that situation.
Thus, the most natural, and candid, response to the judiciary’s demand for a precise definition of diversity-based preferences is to state the policy objective as insuring that there are “enough blacks (and sometimes Hispanics) on campus.” Putting the matter that way, however, confirms judicial suspicions of rank unconstitutional race balancing.
The refusal of courts to indulge abstract assertions of diversity means, moreover, that the education establishment’s concerted effort to emphasize the benefits of race-based admissions policies will carry little weight. Bowen and Bok have argued that “race-sensitive” admissions policies have enhanced racial interaction on campuses, improved education at elite institutions, and created “the backbone of the emergent black middle class.” Whatever merit those claims may have, they hinge on an understanding of diversity as a means of increasing the number of black students at elite schools. Even euphemistic claims to the effect that diversity requires a “critical mass” of members of certain minority groups have aroused judicial suspicion and disapproval.
Nor can colleges and universities maintain that race-based preferences serve to foster not racial but intellectual diversity — the purpose Justice Powell had in mind. On that theory, admissions policies that extend substantial racial preferences flunk constitutional tests because they are not “narrowly tailored.” No selective (secular) university, for instance, extends preferences on the basis of religion — even though religions are variously under- and over-represented, and even though religion bears a much closer relation to intellectual diversity than does race. Assertions that race is a proxy for viewpoint or intellectual diversity are D.O.A. in any court in the United States.
For universities, the thin silver lining on the dark legal horizon is this: A narrowed definition of diversity makes it harder for advocates of official colorblindness to get a clean shot at Justice Powell’s effectively defunct Bakke opinion. If that opinion is read (as it should be read) to prohibit expansive, systematic racial preferences — such as the ones at issue in the Washington and Michigan cases — the courts may continue to rule for plaintiffs who are charging reverse discrimination, while sidestepping the diversity question. On the other hand, subtle race preferences that would conform to a narrow reading of Justice Powell’s Bakke opinion — and thus put the diversity rationale to the constitutional test — may be too hard to detect, and document, to become attractive targets of litigation.
In litigation, the substantial scope of racial preferences typically compels universities to argue that Powell’s opinion permits a limitless racial “plus,” provided only that the university does not physically set aside seats or segregate the files of minority applicants. That is, in essence, the defendants’ position in Smith, as it was in Hopwood. An appellate judicial endorsement of that position might actually harm the larger defense of racial preferences, since it would create an open conflict with Hopwood — and well-nigh force the Supreme Court to hear the long-awaited “son (or daughter) of Bakke.”
Advocates of preferences may hope that the Supreme Court will fall back on narrowing the scope of diversity, rather than wipe the slate clean. With remarkable (though not perfect) consistency, the Justices have, for roughly a decade, pursued a gradualist civil-rights strategy: So long as appellate courts have moved toward a gradual curtailment of racial preferences, the Supreme Court has been reluctant to review their decisions and to set a dramatic precedent favoring racial neutrality. Witness, notably, the Court’s refusal to review Hopwood. Similarly, in cases dealing with government contracting, the Supreme Court (more precisely, its centrist block) still says that it would permit narrowly tailored affirmative-action plans to compensate for past discrimination. But the Court has not encountered such a plan for over a decade, and its demanding legal tests insure that none but the most renegade lower court will accept such a scheme. Diversity-based preferences may travel on the same trajectory: in principle, maybe; in practice, never.
While such a legal regime is anything but an endorsement of the reigning pro-diversity orthodoxy in higher education, it would nevertheless enable universities to test the outer limits of diversity preferences time and again, all the while insisting that the courts have left the door open for that enterprise. Universities could circumvent adverse court decisions, hope for a Gore Presidency and a dramatic reshaping of the courts and, failing that, bet that institutional inertia and resistance will, in the long run, beat a handful of plaintiffs’ lawyers and ornery judges.
Lest this scenario seem unduly cynical, it has a precedent squarely on point: Bakke. The Powell opinion exhorted universities to use race modestly and responsibly. However, Hopwood showed, and the pending admissions cases will confirm, that selective universities have grossly abused that limited permission. Their reading of Bakke as a warrant for systematic, large-scale racial preferences makes nonsense of Justice Powell’s insistence on fair, individualized comparisons among applicants of different races, and it compels universities to conceal and dissemble about the actual purposes and operation of race-based affirmative action. No matter, though: Having gotten away with this game for 18 years, universities would probably be happy to play it again.
In the long run, however, the strategy is unlikely to succeed. While lower courts are understandably reluctant to confront the diversity question head-on when doing so seems unnecessary to decide a given case, the more resolute Hopwood court had it right both as a matter of law and as a matter of judicial strategy. Sooner or later, Smith or some case like it will reach the Supreme Court. The centrist Justices on the Supreme Court may think that their gradualism has served them and the country well — that they have captured a rough social consensus, which wants to pursue racial integration but not in an overly organized, centralized fashion (and certainly not at the price of overt discrimination against people who are not members of favored minority groups). But the social benefits of that approach have now been realized; public institutions, minority constituencies, and the public at large have had ample time to adjust to the impending demise of racial preferences.
Even from the universities’ vantage point, moreover, the practical difference between an “honest Bakke” regime and official colorblindness is too small to be worth fighting over. In fact, since no legal rule is fully observed, an “honest Bakke” regime is what official colorblindness would produce. As for a dishonest Bakke regime, the Supreme Court has been had once. It is unlikely to let itself be fooled again.
Affirmative-action proponents, it appears, agree with that analysis. Late last year, when the First Circuit’s decision in Wessmann v. Gittens ended racial-admission preferences at Boston Latin, civil-rights groups prevailed on the school board to forgo an appeal. And just recently, the University of Massachusetts at Amherst (which is situated in the First Circuit) abandoned racial, student-enrollment targets. At the citadels of diversity, realism is gaining ground.
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