Contested concepts and racial preference

April 05, 1999 − by CIR − in Articles − Comments Off on Contested concepts and racial preference

By Terence J. Pell

Delivered at Hamilton College, April 5, 1999

The title of my talk today is “Racial Preferences in Higher Education.” But really, it should be called, “The Debate About Racial Preferences in Higher Education.” Because, I want to talk today not so much about racial preferences themselves, but certain features of the ongoing debate about their use. In particular, I want to show how one feature of this debate has very different and incompatible consequences for the way schools, on the one hand, and courts, on the other, approach the question of race.

The feature of the debate to which I want to call attention is its deeply contested character. I want to show that educational institutions, on the one hand, and courts on the other, have different and incompatible ways of responding to the contestedness of race. These different institutional strategies run in contrary directions. This fact, rather than any deep disagreement about race, may underlie the current legal dispute about university admissions policies.

If I am right, lawsuits against university admissions policies are likely to continue and likely to be successful. For the same reason, resistance to these cases is likely to be vigorous and sustained by college and university officials determined to maintain the use of race in admissions. For if the argument of this paper is correct, the real dispute between courts and colleges is driven not by disagreement about what the law requires but rather by their different institutional strategies for dealing with the contested nature of the concept of race. Overcoming the divide between the courts and colleges will require a transformation in the way these institutions deal with the contestedness of race and maybe even the way we think about race. At the end of my talk, I will outline some of the concrete ways both schools and the courts are starting to effect such a transformation.

What do I mean when I say debate about race is contested? Of course we all seem to disagree about the appropriate role of race in public life. It is a “hot-button” issue that people try to avoid in polite company, like they try to avoid debates about religion or politics.

When I say the concept of race is contested, though, I mean something more than just that it arouses heated disagreement. I mean that there is something about the way the concept of race is structured that makes disagreement inevitable and in some ways unresolvable.

Moral Contestedness

Perhaps the easiest and best way to understand what contestedness is all about is by briefly considering a paper written by a British philosopher William Gallie in 1956. Gallie argued that certain moral concepts are “essentially contested.” By that, he meant that debate about these moral concepts is necessarily permanent and without resolution. That is, there is no way in principle ever to resolve debate about these moral concepts because they embrace a number of different and competing conceptions.

For example, Gallie says, people often have competing and rival conceptions about what the “best” baseball team would look like. Some think the “best” team is one that emphasizes speed. Others might think the “best” team is one that has many good hitters. Still others think the team that best exemplifies baseball is the one that has the most skillful fielders.

Disputes about the best baseball team cannot be resolved in principle. Sometimes we try to settle such disputes by, for example, holding a “World Series” and seeing which team wins. But such events only serve to further debate about which team REALLY is the best team, which team, that is, truly “deserves” to be called the world champion.

Gallie’s point is that there is no way to resolve disputes of this nature; they are, as he says, “essentially contested.” It is in the nature of baseball for there to be different ways to play the game and endless disagreement about which of these ways is really best.

Endless debate about contested concepts, like baseball, sometimes serves a useful social purpose. Part of the fun about baseball is discussion about what baseball really means and which team truly exemplifies what baseball is all about. It would be beside the point to settle once and for all the question of which really is the best baseball team because we all recognize that part of the nature of the game is competing, essentially contested conceptions of how best to play it. So part of understanding what it means to be an essentially contested term is understanding the social purposes served by debate about moral or evaluative concepts.

In something of the same way that concepts like the “best” baseball team are essentially contested, the term “race” is essentially contested. Particularly as applied to racial minorities, the concept of race embraces a great variety of particular conceptions of what “race” means and what significance it is supposed to have in everyday life. Just as we recognize competing conceptions of baseball as all being about the same thing, we recognize competing conceptions of what it means to be an African American or an Hispanic American or an Asian American as all being legitimate conceptions of a particular racial identity. And, as the hyphenated form of those terms suggests, we strive to recognize competing racial identities as legitimate conceptions of what it means to be an American.

Whereas Gallie argues that certain evaluative terms are “essentially” contested — that is, contested because of the game-like nature of what they describe, it seems rather clear that the concept of race is contested for political and moral reasons. To generalize about a racial group, or to ascribe properties to one racial group that supposedly distinguish it from another racial group are considered highly suspect because such efforts so frequently rest on racial stereotypes and not infrequently mask invidious intentions.

In this way, the contestedness of race differs from the contestedness of baseball. The competing conceptions of baseball are more less limited to a handful of fairly easily discernible approaches to the game. We are willing to dismiss outlandish conceptions of baseball as not really being about baseball at all but about some other game. The reason for this is clear: part of the purpose of contestedness in baseball is to catalogue the different conceptions of what it means to play baseball while at the same time distinguishing baseball from other sports.

But the same is not true about race. At some level, we recognize that there as many conceptions of what it means to belong to a particular racial group as there are individual members of that group. We go out of our way to remove limits and barriers to what can count as a legitimate conception of racial membership.

In some ways, contestedness in matters of race serves an opposite function from that in sports. The idea is not so much to keep track of a limited number of alternative conceptions of race, but to make race susceptible to the broadest possible variety of different conceptions.

For this reason, we might say that while baseball is an essentially contested concept, race is a thoroughly or radically contested concept. The difference reflects the different social purposes served by contestedness. In the case of baseball we want to encourage lively debate about which of several different approaches to the game really is best. In the case of race, we limit and even discourage debate about the “best” conception of what it means to belong to this or that racial group.

Thus there almost are no circumstances in which someone outside a particular racial group would presume to make a judgment about whether a particular conception of racial identity is legitimate or not. Though members of a particular racial group may debate among themselves whether a particular individual is really “black” or really “white” such talk is considered highly problematic. In almost every case, it is used as a political tactic to marginalize a view thought to be far outside the mainstream. There is almost no case in which we would speak of the “best” conception of e.g. “blackness” as we routinely speak of e.g. the best conception of baseball.

Though much more could be said about moral contestedness in general and the specific character of racial contestedness, what I have said so far should be enough to establish that race is contested in a deep and deliberate way. This means more than that we all as a matter of fact disagree about racial issues or that they are hotly and vigorously debated or that they engender strong feelings all around. In addition, the concept of race typically is used in such a way as to deliberately and intentionally prevent particular or parochial conceptions of race from becoming ascendant. It means, that is, that the concept of race is constructed to admit of a great variety of competing conceptions about what race means and what significance it ought to have in everyday life.

INSTITUTIONAL RESPONSES TO CONTESTEDNESS — SCHOOLS

This paper contends that schools and courts characteristically resort to different and opposed strategies for dealing with the contested nature of race. I will first describe the general features of what I take to be the approach followed by many educational institutions. Then, I will contrast this with the approach followed by legal institutions. We will see, I think, that these approaches are deeply opposed to each other and are the source of inevitable and longstanding tension between courts and schools. Resolving the issue of race in University admissions will require that we better understand the inherent difference in the ways these two institutions approach the thoroughgoing contestedness of race.

To understand the different strategies to contestedness employed by the courts and the schools, we first have to understand how and why moral contestedness is such a problem for these institutions. Part of the answer is this: the concept of race is highly charged. It excites great political expectations of every sort and variety. Institutions such as schools and courts cannot long afford to “get it wrong” when it comes to race.

Yet because the concept itself is thoroughly contested, it is difficult for schools and courts to assert any particular conception of race or any racial group. Rather, they must devise policies that reflect the widest possible variety of particular racial conceptions. They must permit the concept of race to be defined by individual members of different racial groups. Thus, institutional policies must be devised in such as way as to change and respond to evolving and variable racial self-conceptions.

Anyone who has spent time in an institution of higher education is familiar with the difficulties posed by the sort of contestedness that characterizes race. Schools are bureaucracies. They must respond to variety of competing student, faculty and alumni constituencies. School officials must try to minimize controversy inherent in institutional decisions, which, no matter how carefully constructed inevitably displease one or sometimes all constituent groups.

One institutional strategy for minimizing conflict is to make decisions according to some general set of stable and uniform policies that can be explained and applied in regular fashion to particular cases. That way, even if a decision is disagreeable to some, at least it can be shown to be made according to some general and public set of considerations, rather than to serve merely the parochial interests of an individual official.

However, it is difficult to formulate stable and uniform institutional policies on the basis of a highly charged concept like race, because it admits of no particular, stable conception. A policy that looks progressive at one point in time can be attacked as insensitive and retrogressive at a later point in time. Even the language used to describe racial groups undergoes periodic change in response to developing conceptions of racial self-identity.

School officials need a way to talk about race that doesn’t immediately get them into a debate about this or that contested conception of race. They need to be able to say that they are responding to the issue of race without sparking endless debate about which conception of race in particular matters to them. Their policies for taking race into account have to be broader than the sometimes changing conceptions of racial self-identity of this or that racial group. Otherwise they risk ongoing, divisive debate, and frequent changes in policy that open officials to charges of lack of seriousness and inconstancy.

To deal with this problem, schools nearly always talk about race in terms of its most general concept rather than any of its particular contested conceptions. Instead of articulating and defending a particular contested theory of why race is relevant to higher education, they tend to focus discussion on the most obvious, noncontroversial, and objective features of race: skin color and/or ethnic origin.

Reducing race to ethnic origin provides a way to refer to the bare concept of race without invoking any of its contested conceptions. This manner of speaking offers a non-controversial, bureaucratically convenient way to formulate and evaluate a uniform and stable set of policies that can’t be held hostage to changing, contested, and nearly always controversial conceptions of race.

The reduction of race to its bare concept may be especially useful to school officials in formulating and explaining admissions policies. Particularly state institutions, which must respond to countless political constituencies in addition to the normal student, faculty, parent and alumni groups, may find it particularly useful to treat race in this manner. An admission office that wants to take race into account without committing itself to any particular contentious conception of race can do so by simply reducing race to its most easily identifiable attribute. Applicants can be categorized, points can be assigned, and offers can be counted.

Reducing race to the bare concept of ethnic origin offers more than convenience. In addition, it reinforces the ideal of ethnic self-determination that as we saw, is one of the purposes served by treating race as a wholly contested concept. An admission office doesn’t have to commit itself to any particular conception of what minority students are supposed to bring to an institution or what they, as a racial group are supposed to get out of it. Determining the role of race in a particular institution is left for minority students themselves to establish once they arrive. All the admissions office has to do is make sure that there is an adequate number of students from different racial groups present in the entering class.

The admissions system employed by the University of Michigan undergraduate college of Literature Arts and Science represents one of the clearest examples of this approach to race. It is built almost entirely around the idea of race as skin color or ethnic origin. Grids obtained from the University of Michigan admissions office show how the racial classification works.

These grids are used to sort applications at the very first stage of the admissions process. Arrayed along the vertical axis are grades and along the horizontal axis, test scores. Clerks are instructed to find the box where an applicant’s grades and test scores intersect. Within each box are two sets of codes, which instruct the clerk as to the proper handling of the application. One set of codes is supposed to be applied to non-minority students and the other to minority students.

Within some boxes, the minority and non-minority codes are quite different. For example, non-minority students with certain grades and test scores are rejected out-of-hand by the clerk. A minority applicant with exactly the same grades and test scores is passed on for further review and probable acceptance.

The most pronounced racial differences are in the middle zone of grades and test scores: above that zone, nearly every applicant gets accepted regardless of race and below that zone nearly every applicant get rejected regardless of race. But within that middle zone, the differences are stark. In each box, the minority line shows acceptance codes and the non-minority line shows reject codes. Accept reject, accept reject, accept reject all along the line.

These grids are admittedly an extreme example of how far colleges can go in treating race solely in terms of its bare concept. Nevertheless, it is easy to see why the underlying idea of thinking about race as a concept rather than a conception may be attractive to colleges, for it offers administrators the best of many worlds. A school can measure, count, and demonstrate what it is doing with respect to race without getting into controversial theories of why race is relevant. And it can cast its official neutrality towards competing theories of race in terms of sensitivity and support for developing and changing racial self-conceptions.

HOW COURTS DEAL WITH CONTESTEDNESS

Schools try to be agnostic to competing conceptions of race, preferring to focus instead on its least controversial characteristic. Courts take just the opposite approach. Courts are concerned precisely with competing conceptions of the significance of race. Like schools, courts are cognizant that particular conceptions of race can be both pernicious and controversial. To avoid the problems posed by competing, contested, conceptions of race, courts try to carefully distinguish between benign conceptions of race that are necessary to achieve a compelling government objective from those that are malignant or simply unnecessary. Unlike schools, which tend to let many conceptions of race flourish, courts tend to limit the use of race to a handful of extremely narrow conceptions deemed necessary to some compelling government objective. Whereas colleges base their policies on only the bare concept of race so as to be open to its different conceptions, courts base their legal principles on a few very narrow conceptions of race in order to close the doors to all other conceptions.

These are not just different strategies for dealing with moral contestedness. In addition, they are incompatible. To the extent that an institution focuses on the bare concept of race, it is expressing neutrality with any of its competing conceptions. To the extent, on the other hand, that an institution focuses on a particular conception, it is foreclosing the neutrality towards other conceptions. Thus, a school used to talking about race in terms of its bare concept cannot start talking about race in terms of a particular conception. And a court that is used to dealing in terms of very specific conceptions of race will resist utterly any effort to recast race in terms of its bare concept of skin color or ethnic origin.

Perhaps the strongest statement of the courts’ reluctance to permit race to be reduced to skin color appears in the late Justice Powell’s opinion in the Bakke case. Among the justifications put forward for race conscious admissions by the University of California was this: preferential admissions were necessary to “reduce the historic deficit of traditionally disfavored minorities in medical schools and the medical profession.” Bakke, 438 U.S. 265, 306 (1978).

Powell rejected this argument in its entirety. He said that no public university is permitted to favor or disfavor applicants solely because of their skin color. Universities may not seek some particular mix of race in their student bodies. Here is what Powell said:

If petitioner’s purpose is to assure within its student body some specified percentage of a particular group merely because of its race or ethnic origin, such a preferential purpose must be rejected not as insubstantial but as facially invalid. Preferring members of any one group for no reason other than race or ethnic origin is discrimination for its own sake. This the Constitution clearly forbids.”

438 U.S. at 307.

Thus, whereas a school might be comfortable trying to make sure its student body had a respectable number of minority students — without imposing on those students any particular theory of why racial representation was important to the school — courts reject this approach out of hand.

Courts limit racial classifications to those that are necessary to achieving a compelling government interest. Pernicious racial classifications are illegal. So too are racial classifications that are gratuitous, that either do not serve a compelling government interest or that are not necessary to the achieving of that interest.

In general there are two government interests that the courts find sufficiently compelling to justify the use of race. First, a school make take race into account to remedy its own past discrimination, including the ongoing vestiges of such discrimination. Second, schools can take race into account to achieve intellectual diversity.

Inasmuch as most institutions of higher education are actively committed to avoiding racial discrimination, it is the second, “diversity” rationale that most often is relied upon to justify the use of race in admissions. It is based on a conception of race considerably more determinate than the “race equals ethnic origin” view relied upon by the University of Michigan admissions system.

According to Justice Powell, who first articulated the rationale in the landmark Bakke decision, an institution of higher education has a constitutionally recognized First Amendment right to “determine for itself on academic grounds who may be admitted to study.” 438 U.S. at 312.

Powell went on to explain that an educational institution may have a compelling interest in taking race into account if that is necessary to achieving intellectual diversity in its student body. Powell’s argument is based on his conception of the purpose of an institution of higher education, namely to foster the search for truth. It is further based on a on view about the best way to search for truth, namely to fully hear all competing positions. This purpose and the means to achieve it place strict limits on how race may be taken into account in admissions.

First, Powell is very clear that the end of intellectual diversity is not served if race is used to achieve “simple ethnic diversity.” he says:

In a most fundamental sense, [this] argument misconceives the nature of the state interest that would justify consideration of race or ethnic background. It is not an interest in simple ethnic diversity, in which a specified percentage of the student body is in effect guaranteed to be members of selected ethnic groups…The diversity that furthers a compelling state interest encompasses a far broader array of qualifications of which racial or ethnic origin is but single though important element. [UC Davis’] admissions program, focused solely on ethnic diversity would hinder rather than further attainment of genuine diversity.”

438 U.S. at 315.

Second, Powell says that race cannot be used in a wholesale way to categorize and separately evaluate entire racial groups. Race cannot be used to insulate candidates of different ethnic backgrounds from comparison with one another, as occurs in a dual admissions system, where candidates of different ethnic backgrounds are kept on separate admissions tracks, each with its own procedures and standards.

How then, does Powell think race can be used? According to him, race is supposed to be one of many “plus” factors used in considering individual applicants. Powell goes on to explain that the sort of diversity that justifies the use of race requires that race have roughly the same weight in evaluating a particular applicant as many other characteristics. Powell said race should be considered along with such attributes as “exceptional personal talents, unique work or service experience, leadership potential, maturity, demonstrated compassion, a history of overcoming disadvantage, ability to community with the poor or other qualifications deemed important.”

He says,

This kind of program treats each applicant as an individual in the admissions process. The applicant who loses out on the last available seat to another candidate receiving a plus on the basis of ethnic background will not have been foreclosed from all consideration for that seat simply because he was not the right color or had the wrong surname. It would mean only that his combined qualifications, which may have included similar nonobjective factors did not outweigh those of the other applicant.

438 U.S. at 318.

According to Powell then, race may be used if it is used at all only in very sharply restricted ways and only to achieve very narrowly specified ends. In particular, race cannot be used systematically to benefit any and all applicants of a given ethnicity. A school may not give extra points to every applicant because he or she is black. It may not use one set of criteria to evaluate minority applicants and another set of criteria for non-minority applicants. It may not create a separate admissions committee or separate admissions procedures for applicants of a particular racial group. All of these systematic uses of race are illegal

Rather, race may used in an individualized manner, to evaluate particular applicants. When an admissions committee must choose between applicants of similar overall abilities, it must weigh the merits of applicant A against the individual merits of applicant B. Under these circumstances, Powell thought it reasonable to consider everything about A and B that might contribute to the intellectual diversity of the class. In that case, it would be unreasonable not to look at an applicant’s ethnic background along with everything else that might be known about an applicant. For the sake of intellectual diversity, Powell argued, we can make some room for the use of race.

We may disagree with aspects of Powell’s account as indeed, many have done. But the more important point is to notice the that Powell is trying to come to grips with the contestedness of race in a way fundamentally different from the approach followed by many college admissions office. Powell explicitly repudiates the view that ethnic origin alone is a satisfactory conception of race for purposes of university admissions. Whereas college admissions offices focus on ethnic origin partly as a way to avoid wading into much more controversial theories of why the consideration of race might be relevant, Powell says such an account cannot be avoided. Furthermore, the theory of race that Powell settles on is not a generic theory that applies across the board to all individuals of a given racial group. It rather requires a very individuated examination of the race of a particular applicant in light of everything else known about that applicant.

Problems created by two competing theories of contestedness

I now want to talk about some of the problems caused by the fact that schools and courts typically rely on two very different institutional strategies for dealing with the contestedness of race. The fundamental problem is this: there is very little prospect that the courts could ever develop a legal theory of race that would be able to accommodate the ways schools are likely to use race. That’s because these two types of institution are driving in opposite directions: schools have to remain open to the broadest possible variety of conceptions of the significance of race, whereas courts constantly try to restrict the grounds upon which race might be relevant to higher education.

It should be noted that these two approaches to contestedness, though different and incompatible as institutional strategies, share a similar view of race and its appropriate role in everyday life. Both schools and courts want to allow individuals the greatest possible latitude to determine for themselves whether and for what purposes race has significance in their lives. Schools further individual freedom in matters of race by not imposing any particular conception of race on their students. Courts further individual freedom by closely restricting the ways that schools and other government institutions can use race. By restricting the official use of race to a small number of clearly acceptable conceptions, courts thereby limit the ability of official institutions to interfere with the ability of individuals to determine for themselves what significance to ascribe to race.

Even though courts and schools share the same ultimate objective — to get race off the backs of individuals — they pursue that objective in contrary ways. Schools interpret legal theories that permit the use of race broadly. Inevitably they step over the narrow boundaries for race-conscious decision-making typically constructed by the courts. And the courts, for their part, react to the broad manner in which schools use race as a basis for further narrowing their rulings.

The history of the use of race in college admissions since Justice Powell’s opinion in Bakke twenty years ago illustrates the inherent tension between courts and schools when it comes to race. Powell thought he had provided a strong but limited basis for the use of race in admission by constructing a link between race or ethnicity on the one hand, and the intellectual mission of educational institutions on the other.

However, institutions of higher education found it very difficult to stay within Powell’s boundaries. Many schools paid lip service to Powell’s theory of race while utilizing admissions procedures that clearly violated it in nearly every respect. It was not until state freedom of information laws were used to obtain admissions documents from state schools that it became clear just how far afield many schools had strayed.

Though it claimed to be following the letter and spirit of Powell’s opinion, for example, the University of Texas Law School for a long time separated applicant files into two piles — one for minority applicants and another for non-minority applicants. The folders then were sent to separate reviewing committees that applied widely divergent admissions criteria. As the court later found, the presumptive deny score for white applicants was below the presumptive admit scores for minority applicants. Internal memoranda revealed that school officials knew that they operated a dual admission system designed to achieve a desired ethnic mix so it was not the case that the school simply had failed to consult competent legal counsel. Indeed, as a leading law school, it should hardly have been necessary for officials to consult outside lawyers!

The problem is not that Texas and other school official are unaware of the law. The problem is rather that Texas, like many other institutions of higher education, looks at race in a way fundamentally different from the courts. Schools are disposed to view race as a bare concept that supports many possible competing conceptions. Courts, on the other hand, are disposed to narrow the bare concept of race to a particular and sometimes arcane conception. So long as these two types of institution follow these very different institutional strategies for dealing with the contestedness of race, there is little likelihood that a new Supreme Court decision, or a new legal theory, will make possible the continued widespread use of race in college admissions.

But there is a second, deeper, problem with the fact that courts and schools utilize different approaches to the contestedness of race and that has to do with the approaches themselves. For as it turns out, neither approach works very well as a practical way to deal with race.

Though they represent opposed institutional strategies for dealing with the contestedness of race, each fails for a similar reason relating to the nature of contested moral concepts. In a deep sense, the whole idea of a contested moral concept is to have it both ways — to be able to assert that something is important as a category of moral evaluation and at the same time to be able to refrain from any particular account of why it is important.

Thus, schools and courts in different ways want to acknowledge that race is important just as much as they want to establish that race isn’t important. Schools want to admit minority students but they want to do it in a way that does not attach undue significance to race. Schools try to accomplish this by focusing on ethnic origin but leaving open entirely the question of why ethnic origin is relevant. They try to create the sense that the racial mix of the incoming class is no more significant than the skin color of a given individual. Something to notice, yes, but nothing terribly significant beyond that.

For his part, Justice Powell wants race to be a factor in admissions, but not that much of a factor. He accomplishes this by narrowing the grounds on which race can count in admissions so that in the end race is no more important than any one of a dozen other factors that at most can tip the scales between candidates who otherwise seem indistinguishable academically. On Powell’s view, the race of one applicant should matter no more than the fact that another applicant happens to be from Iowa. Relevant yes, a tie-breaker sometimes, but never the sole or primary basis for admissions.

But the contradiction inherent in trying to make race significant and, at the same time, insignificant, undermines both the approach to contestedness typically followed by institutions of higher education and that followed by Justice Powell. Let’s begin with the approach followed by schools.

It makes sense to say that race is no more significant than skin color if this is in fact is true. Unfortunately, schools like the University of Michigan end up reinforcing exactly the opposite conclusion. That is because these schools apply widely different admissions criteria to applicants based on race. In effect, non-minority students are admitted on the basis of highly competitive measures of academic skill. Minority students, on the other hand, are more likely to be admitted on the basis of their ethnic origin.

The reason for this follows from the heavy use of standardized test scores to measure academic promise at Michigan and elsewhere. Unfortunately, the use of standardized test scores as a proxy for academic ability creates a racial divide in the admissions process. Longstanding and significant racial disparities in standardized test scores effectively eliminate many minority applicants from consideration at schools where such scores count heavily in admissions.

To counteract the predictable dampening effect of these disparities on minority admissions, schools like Michigan employ two admissions standards, one for white applicants and one for underrepresented minorities. In effect, these schools are using an overt racial classification to counteract the effects of the racial classification that creeps into the admissions process through the heavy use of standardize tests.

But the effect of the dual admissions system is that the standards of selection for minority students at schools like Michigan are lower, as measured by the standard of academic ability used by the institution itself. This is because the standards applied to minority students are diluted by color or ethnicity — two factors which are irrelevant to academic ability. Whereas non-minority students are selected almost entirely on the basis of highly competitive measures of academic ability, minority students are selected to a much greater degree on the basis of their ethnicity.

Because students of different races are selected according to different criteria, minority students tend on average to do less well at the University of Michigan. It is not the case that membership in a minority racial group implies inferiority — that is clearly not true. What is rather the case is that the University of Michigan selects one racial group according to criteria that have no bearing on the work or study to be pursued. As a consequence, students in that racial group tend on average to do less well.

Thus while schools like the University of Michigan intend and fervently hope to make race mean nothing more than the accidental fact of one’s skin color, they have created an admission system that in fact reinforces a link between minority racial groups and inferior performance. It is hard to imagine an effect more profoundly at odds with the purpose in reducing race to skin color.

The burden of inferiority created by a dual admissions system is reflected in disparate graduation rates. At NCAA Division I schools, for example, the drop-out rate for black students is approximately 60%. For whites, the figure is about 40%. At the 28 most selective colleges in the country, the drop-out rate for black students is considerably lower — about 21%. This has lead Derek Bok and William Bowen to conclude that minority students do better at more selective schools. Unfortunately, Bok and Bowen neglect to note that the drop-out rate for white students at these 28 selective schools is much, much lower — about 6%. Thus, while both black and white students drop out at lower rate at more selective schools, the disparity between black and white drop out rates in fact increases at these schools.

Powell’s approach to race solves the worst problems associated with a dual admissions system because Powell expressly says that race cannot be used as the basis for two different admissions standards. Were schools to restrict themselves to the use of race outlined by Powell, the problems associated with a dual admissions system would not arise. However, it is worth pointing out that Powell’s approach nonetheless suffers from a problem analogous to that posed by a dual system.

Like the approach to contested moral concepts typically adopted by colleges and universities, Powell’s approach seeks to both acknowledge and suppress the importance of race. On the one hand, he says that race may be taken into account in order to achieve intellectual diversity. On the other hand, he quickly submerges race as only one of many factors that could affect a particular candidates chances of admission.

Powell’s desire to have it both ways reflects a deep ambiguity. On the one hand, he seems to be saying that race is a proxy for certain convictions and points of view. For this reason, Powell says it is reasonable for a college or university to use race in order to achieve intellectual diversity among its student body.

But the idea that a particular racial group typically espouses certain political convictions, moral viewpoints or even intellectual dispositions is almost certainly false and morally quite suspect. As nearly anyone recognizes, the political convictions and viewpoints of minority college applicants are not significantly different from the political convictions and viewpoints of nearly any other group of applicants. And, it is both dangerous and destructive to assume that they would be different, for such a view depends on stereotypes about the intellectual and moral outlooks of people whose skins are black, white, or some other color. The use of such stereotypes by college admissions offices not only assumes their truth, but reinforces their use.

On the other hand, it is possible to read Powell as saying that colleges and universities may take race into limited account in order to assure an intellectually diverse student body, not because minority students generally share some distinctive intellectual outlook, but precisely to reinforce the idea that they don’t. Perhaps Powell is suggesting that students learn through personal experience that race or ethnic origin almost never correlates with intellectual outlook or political viewpoint. In this sense, Powell might be saying that it is reasonable to take race into account precisely so that students can learn not to take race into account.

While I believe this second interpretation is a sensible reading of Powell, it does raise the following question. If Powell believes that race ultimately is irrelevant to intellectual diversity, how could it ever be rational for colleges to take race into account in achieving intellectual diversity? In an important way, Powell wants to have it both ways. He wants race to be relevant to intellectual diversity even though he thinks in the end race is not relevant to intellectual diversity.

It is time to pull the threads of my argument together. I have tried to show that there is a deep divide between the way courts and college admissions offices typically approach the contested issue of race. While they do not fundamentally disagree about the role of race in college and university life, they follow very different strategies for trying to make sure race is limited to that role. The deep differences in these two strategies make it difficult to see how courts and schools could agree on whether and to what extent race should be a factor in college admissions.

To the extent colleges and universities are determined to make race a concept that supports as many contested conceptions as possible, courts are equally determined to limit the use of race to one or two of its narrow conceptions. To the extent that colleges are determined not to specify the role that race plays in education, courts are equally determined to spell it out in great and arcane specificity.

I said at the beginning that I would end on an optimistic note by describing the efforts now underway by some colleges and universities to break the impasse I have described. It is time to make good on my promise. What follows is necessary impressionistic, but will serve to outline some possible approaches to solving the problem I have outlined in this paper.

To begin with, it is worth noting that the tension between the courts and the schools is profoundly uncomfortable for both institutions. Lawsuits challenging college admissions are expensive and publicly divisive. In addition, the sorts of ways colleges are typically violating the law exposes both schools and school officials to staggering sums of both institutional and personal liability. Last year, for example, a court found a community college in Ohio liable for a racial preference that it found to be a clear violation of law. Because the preference was egregious, the court went on to hold the officials and trustees of the college liable in their personal capacities for financial damages. Though these official will be indemnified by the state and will not, therefore, have to pay these judgments out of personal assets, the message is unmistakable. Colleges and college officials can no longer risk using racial preferences that seem clearly to violate existing legal standards.

If only because of the threat posed by lawsuits, I believe schools inevitably will re-assess the role of race in college admissions. At this stage, schools seem to be following one of three general strategies.

First, some colleges are now hewing to Justice Powell’s opinion in ways that they didn’t before. Small colleges such as Bowdoin College and Bates College (both in Maine — don’t ask me why) reportedly have reduced and even eliminated the use of standardized test scores. This has greatly reduced the need to use race in a wholesale way to counteract racial disparities in standardized test scores. As a result, these schools are able to consider the race of each and every applicant as one factor among many.

A second, less hopeful approach is is being taken by schools like the University of Michigan and other defenders of the systematic use of race in admissions. Following the lead taken by Derek Bok and William Bowen in their book the shape of the river, these schools are arguing that we should abandon Powell’s distinction between racial diversity and intellectual diversity. Instead of limiting the consideration of race to that which is necessary to achieve intellectual diversity, these schools want to use race explicitly to achieve racial diversity for its own sake. Of course, this is what Powell said the Constitution clearly forbids. But these schools nonetheless argue that racial diversity can be a compelling state interest when it produces good consequences. Increasing the number of minority students who enter the professions, increasing racial understanding on college campuses are some only some of the social benefits that these schools argue flow from racial diversity.

For the reasons suggested in this paper, I think it is highly unlikely the courts will accept such an approach. Sanctioning the use of racial preferences in order to achieve a certain racial mix opens the door to too many questionable uses of race, uses that could greatly increase rather than decrease the significance of skin color in everyday life.

For example, if a court decided that it was constitutional for a college or university to use race to fine-tune the racial mix of its incoming class, then it would have to permit other types of educational institutions the same freedom. Some educators now believe that all black elementary schools make sound educational sense, and on U of M’s theory of racial diversity, this would have to be permitted. And if a court were to permit all-black elementary schools, it would find it difficult to strike down all-white schools. Courts would be hard-pressed to second guess any racial mix — whether all-white, all-black, or something in between — so long as a school supported it with some purported educational objective.

A third approach is that being followed by Texas and California schools. As a result of Prop 209 in California and the Hopwood case in Texas, these schools have eliminated completely the use of race in college admissions. Although minority admissions dropped significantly at some schools in the first year following the elimination of racial preferences, such drops were confined to a handful of flagship schools — 6 out of 74, to be precise. At other schools, minority enrollment was constant and in some cases increased significantly. And, in the second year following race blind admissions, minority enrollment rebounded at many (though not all) of the flagship institutions.

It is too soon to pronounce the California and Texas efforts fully successful, but is also is too soon to pronounce them a failure. Though many predicted a “re-segregation” of higher education in those states, it so far has not occurred. The reason seems to be that the flagship schools have moved away from the heavy use of standardized test scores in admissions, and simultaneously engaged in vigorous outreach efforts to stimulate high levels of minority applications. As schools in the rest of the country observe what seems to have worked in California and Texas, it is likely they, too will move away from potentially illegal uses of race to an admissions system that more and more is race-blind.

What is significant about the California and Texas approach is that it preserves and carries to a new level the approach to race traditionally favored by educational institutions. Instead of trying to defend a particular theory or conception of race, as Michigan is attempting, these schools have moved further in the direction of treating race as irrelevant to education. So long as these schools are in fact able to continue to recruit and enroll minority students, this approach probably has the best chance of working.

Thank you.



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