By Richard Lowry
The National Review, March 19, 2001
The entire academy is depending on the University of Michigan. In response to lawsuits challenging its undergraduate and law-school admissions policies-cases that may well be appealed all the way to the U.S. Supreme Court-the university has undertaken a massive legal, sociological, and public-relations effort to justify racial preferences. Michigan’s president, Lee Bollinger, is devoted full time to the effort, becoming one of the country’s foremost spokesmen in behalf of racial preferences. So far, the university has won over at least one judge, who ruled mostly in its favor in the Gratz case in December. But that opinion, and the university’s arguments that influenced it, serve only to demonstrate the constitutional and intellectual tenuousness of affirmative action, a policy in support of which Michigan-and most other universities and colleges-will say or do practically anything.
Any discussion of affirmative action should begin with the Fourteenth Amendment: “No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.” As the Supreme Court once explained, the “central mandate” of the amendment “is racial neutrality in governmental decision-making.” In the 1995 Adarand case, the Court sharpened its jurisprudence, holding that any racial classification by a governmental actor must meet “strict scrutiny.” Such classifications are constitutional only if they are “narrowly tailored measures” that further “compelling governmental interests.” This test throws into radical doubt the legal basis of racial-preference policies at public universities.
“[W]hile the mechanics of the admissions process have varied, the policies underlying the guidelines have not changed. Specifically, the University’s use of race as a factor in admissions has been consistent throughout.”
— The University of Michigan in a brief filed in Gratz.
The Washington-based Center for Individual Rights has challenged preferences, first in Texas-where it won the landmark Hopwood case (1996)-and now in Michigan, where it is appealing the Gratz decision. The most important legal backdrop is the Court’s 1978 Bakke decision. In that case, involving a quota at the medical school of the University of California-Davis, the Court issued a splintered ruling that makes December’s Bush v. Gore opinion look clean by comparison. The school had set aside 16 of its 100 slots for minorities, and ran an entirely separate admissions operation for minority applicants. A majority of the Court ruled the Davis system unconstitutional, but a separate majority held that race could, in appropriate circumstances, be a factor in admissions. A very nimble Justice Lewis Powell managed to figure in both majorities. Powell argued that seeking to attain a specific percentage of minorities for its own sake was unlawful, but that diversity as a way to improve education was a “constitutionally permissible goal,” because learning “is widely believed to be promoted by a diverse student body.”
The University of Michigan is holding on to Powell’s robes with a white-knuckled desperation, staking its defense entirely on the late justice’s diversity rationale (even though the authority of Powell’s opinion is in doubt, since it was not endorsed by any other Supreme Court justice, let alone by a majority). Michigan certainly has a lot to defend. From 1995 to 1998, the university employed a “grid” system that grouped applicants into “cells” according to their GPAs, test scores-and race. Minorities and non-minorities were on separate, but not equal, grids. In 1995, for instance, the system called for admission of minority students with GPAs at or above 2.6 and ACT/SAT scores at or above 18 and 820, respectively. The separate standard for non-minority applicants rejected those with GPAs below 3.2 and ACT/SAT scores below 23 and 950. In addition, the school held open a certain number of seats exclusively for minority applicants during its rolling admissions process.
Judge Patrick Duggan, in his ruling in the Gratz case, found this process unconstitutional: The “effect of [Michigan’s] differing standards was to systematically exclude a certain group of non-minority applicants from participating in the admissions process based solely on account of their race.” But in 1998 the school had shifted from the grid to a “point” system.
Under this scheme, an applicant needs 90-100 points to be admitted, and race can get you about 1/5 of the way there. All black and Hispanic applicants get an automatic 20 points. (Asian applicants, who may be minorities, but are not “underrepresented” minorities, get zip.) An excellent essay is worth 3 points. Some outstanding personal achievement is worth up to 5 points. A perfect SAT is worth 12 points. University officials admit that they had a statistician run the numbers prior to the creation of the new system to ensure that it would achieve the same result as the unconstitutional grid system.
Enter once again Judge Duggan. In such matters, he writes in Gratz, there is “often a thin line that divides the permissible from the impermissible.” In the Michigan case, the line is so thin that it is not even visible to the university itself. The university writes in a brief, “[W]hile the mechanics of the admissions process have varied, the policies underlying the guidelines have not changed. Specifically, the University’s use of race as a factor in admissions has been consistent throughout.” This is the most honest part of the university’s argument; and it is not in dispute-the plaintiffs in the Gratz case agree with the university’s analysis. Nonetheless, Duggan discovered in his opinion a thin-to-the-point-of-disappearing line that makes the university’s new system legal. His opinion is built on the gossamer wings of distinctions without a difference.
Duggan argues that-in light of the points also awarded to, for instance, athletes and the sons and daughters of alumni (20 and 4 points, respectively)-“there are many factors that may entitle an applicant to a preference, thereby making the results of any one factor less predictable.” But the purpose of the 20-point racial award is to preserve the ethnic composition of the student body. As Duggan himself puts it, “If race were not taken into account, the probability of acceptance for minority applicants would be cut dramatically.” Indeed. So anyone can predict the result of the point system, even if it is not explicitly spelled out on a grid.
The judge continues with his doublespeak: “Although fixed racial quotas and racial balancing are not necessary to achieving [the goal of diversity], the consideration of an applicant’s race during admissions process necessarily is.” What is giving applicants of certain races a 20-point bonus, and not others, in order to achieve a certain ethnic composition of a student body, if not “racial balancing”? Duggan found the grid system unconstitutional because non-minority applicants were “systematically excluded from the admissions process.” In the new system, they are no longer “excluded,” just considered and rejected. What’s the difference? Duggan’s position boils down to: You can have racial preferences-with differing standards meant to ensure minorities a certain representation-just so long as you aren’t too forthright about it.
This suggests the deeper agenda behind campus defenders of affirmative action: bending everything-not just the admissions process but curriculum and students’ attitudes-to the defense of quotas and racial consciousness.
Given Bakke, if Michigan is to be permitted to consider race at all, it must find a “compelling governmental interest” to do so. In Bakke, five justices held that a race-conscious admissions system is permissible, but differed on what can be a legitimate justification. Four justices held that remedying past societal discrimination is an acceptable rationale, but subsequent Court decisions have whittled away this potential justification. So, it is left to Michigan to work with Powell’s lonely diversity rationale, and prove that diversity is somehow indispensable to higher education. Otherwise, as even one of the university’s amicus briefs concedes, Michigan’s preferences would amount to “the impermissible objective of attaining racial diversity for its own sake.”
Since Western learning survived centuries before anyone even thought of carefully balancing the racial composition of classrooms, the university would seem to have a tough position to defend-which, presumably, is why it had to call in a professor of psychology and women’s studies. Michigan requested a member of its own faculty, Patricia Gurin, to fashion a report on the necessity of racial diversity to learning. Judge Duggan swallows the Gurin report whole, even though it reads as a parody of social-science mumbo-jumbo (dotted with such terms as “social identity,” “automaticity,” and “minded thought”) and politicized scholarship. Gurin contends that diversity has a two-pronged effect: It improves both “learning outcomes” (“Students learn more and think in deeper, more complex ways in a diverse educational environment”) and “democracy outcomes” (students are better able to “appreciate the common values and integrative forces that harness differences in pursuit of the common good”). This is not exactly hard science.
The problems with the study are myriad. Most fundamentally, as a devastating National Association of Scholars brief points out, none of the variables used in Gurin’s regression analysis is actually a proxy for racial diversity. What Gurin measures, in the main, is whether students participated in racial/ethnic-studies courses-an issue related to curriculum, not to admissions policies. The variables that do account for interaction with students of other races-friendships, informal discussions, etc.-establish nothing about whether a certain “critical mass” of minorities is necessary or what would constitute one. As for Gurin’s analysis of “learning outcomes,” it includes students’ self-evaluations of their “social historical thinking,” “complex thinking,” and “intellectual engagement.” As the NAS brief puts it, “These variables measure, at most, whether students believe they should value complex thinking, not whether they are capable of it.” The one solid academic measure Gurin includes is college grades, and she finds no significant correlation of it with any of her nebulous variables.
Professor Gurin can hardly be faulted for failing to establish effects that don’t exist. She has company. Another Michigan brief quotes the assertion of UCLA researcher Alexander Astin that “diversity activities” (again, not the actual racial composition of a class) have “widespread beneficial effects on a student’s cognitive . . . development.” In his extensive work on this topic, Astin actually found that all 82 student outcomes he studied-including Gurin’s “democracy outcomes”-bore no relationship whatsoever to racial diversity, in the sense of the ethnic composition of a student body. The university manages to ignore this, the essential point. And what Astin calls “cognitive development” is really subjective indicators such as students’ “commitment to promoting racial understanding” and their rejection of the belief that “racial discrimination is no longer a problem.” As Astin writes, “One other student outcome that is positively associated with individual diversity activities . . . is political liberalism.”
This suggests the deeper agenda behind campus defenders of affirmative action: bending everything-not just the admissions process but curriculum and students’ attitudes-to the defense of quotas and racial consciousness. Indeed, Gurin’s study proposes making colleges into affirmative-action machines, designed to take benighted white students from the suburbs and make them into defenders of racial preferences: “Institutions of higher education must bring diverse students together, providing stimulating courses covering historical, cultural, and social bases of diversity and community, and must create opportunities and expectations for students to interact across racial and other divides. Otherwise, many students will retreat from the opportunities offered by a diverse campus to find settings within their institutions that are familiar and that replicate their home environments.” The university will be successful only if it promotes the acceptance of liberal multiculturalism, or, as Gurin more politely puts it, the realization that “one-way assimilation . . . is much less likely to prevail in the future.” This is important, Gurin suggests, because attitudes students form at college remain in place 25 or 50 years later-liberals forever!
This is all so corrupting. Lee Bollinger has become one of the nation’s hottest academic properties-quite possibly the next president of Harvard-by associating himself with a multifaceted lie: that Michigan cares about “diversity” as such when it really cares about having more black students, plain and simple (Chinese, Japanese, Thai, and Vietnamese ancestries don’t, oddly enough, count as “diverse”); that “diversity” is crucial to learning when it is really important as a matter of symbolism (everyone wants to be spared the embarrassment of too few black students at an elite educational institution); that research actually supports the connection between “diversity” and learning (it does so only if social science is twisted in the most tendentious way). Dishonesty has a way of distorting everything around it. So it is that affirmative action, and its dogged defenders, have done their part to nudge the academy away from its central mission of transmitting truth and knowledge. What are these, after all, compared with the supreme, all-devouring god of diversity?