By Curt A. Levey
National Review Online, June 11, 2001
The Supreme Court missed an opportunity last week to tackle a key civil-rights issue when it declined to hear a case challenging racial preferences in admissions at the University of Washington Law School. Supporters of preferences breathed a sigh of relief, fearing that the Court would strike down race-based admissions. But the celebration may be short-lived. The University of Texas has asked for Supreme Court review in a similar case, and several other cases are close behind. And, even without Supreme Court action, most race-based admissions policies will not survive constitutional scrutiny under any interpretation of current law.
Known euphemistically as “affirmative action” and practiced by virtually every selective university in the nation, racial preferences mean that minority applicants are evaluated under a different, typically lower, standard than that applied to non-minority candidates. In recent years, such dual-admissions systems have been deemed unconstitutional by federal courts in Texas, Michigan, and Georgia. And now that Smith v. University of Washington Law School is headed back to federal district court, a similar fate may well await that school’s admissions policies.
Katuria Smith, Angela Rock, and Michael Pyle sued the University of Washington Law School after finding themselves on the wrong side of the admissions system’s double standard. In 1994, the year Katuria applied, every black applicant with a GPA between 2.5 and 3.25 and an LSAT score in the 155-59 range – numbers worse than Katuria’s – was admitted. And yet, not one of the 131 non-minority candidates in that GPA and LSAT range was accepted. This bald dual standard – in place until Washington voters banned racial preferences in 1998 – was designed to ensure that about one-third of each entering class consisted of minorities. Never mind that Washington State had a minority population of only 15%.
The law school says the preferences were designed to achieve a diverse student body. But instead of seeking genuine, broad-based diversity, the school was focused primarily on skin color. In other words, “diversity” meant little more than racial balancing. True, the law school sent letters to some applicants encouraging them to provide additional information about their contribution to diversity. But those letters were only sent to minority applicants.
The University of Washington, like many universities nationwide, cites Justice Lewis Powell’s opinion in a 1978 Supreme Court case – Regents of the University of California v. Bakke – as legal authority for using racial preferences to achieve diversity. But no other Justice endorsed Powell’s diversity rationale, making its value as legal precedent dubious. And few observers believe the High Court would endorse that rationale today, given the Court’s rejection of racial preferences in public hiring and contracting.
Though the Supreme Court declined to clarify the legal status of the diversity rationale, Smith, Pyle, and Rock are likely to prevail at the upcoming district court trial. That’s because the law school failed to comply with even Justice Powell’s standard for using preferences. Powell said that race may be used as a “plus” factor, but the law school gave minority applicants a huge preference rather than a small “plus.” Likewise, Powell said that “genuine diversity” must encompass a broad array of characteristics of which race is but a single element. In contrast, race was the central focus of the law school’s version of diversity. Finally, Powell made it clear that racial balancing is unconstitutional, but the law school apparently wasn’t listening.
Because of its narrow definition of diversity, the law school missed out on many non-minority applicants who could have contributed to genuine diversity. Katuria Smith is just one example. She was born poor to a single teenage mother, and worked as a janitor, construction worker, and cattle auction hand as an adult. As Smith explained in her law-school application, she “worked full-time and carried a full load” throughout much of college. The law school considered her economically disadvantaged enough to waive her application fee. However, because she had the wrong skin color, the school decided she would add nothing to its “diversity.”
Slogans like “diversity” and “affirmative action” can’t hide the fact that many of our nation’s universities engage in a form of racial profiling – that is, selecting people based primarily on the color of their skin. We should be deeply troubled when the police do it. So too should we be troubled when admissions officers engage in the practice. Classifying and selecting people based on race – no matter how beneficent the professed motive is – undermines a vital moral and constitutional principle, namely, that people should be judged as individuals, without regard to their race.
Proponents of preferences assert that race-based admissions are, nonetheless, a necessity. Without preferences, they say, campuses would be virtually all white. Not only is such a claim insulting to the thousands of minority applicants who need no preference to get into the best schools, it’s also dead wrong. Both California and Texas – where racial preferences have been outlawed – have maintained the diversity of their public universities by employing non-discriminatory admissions policies, such as automatic admission for the top students from every high school in the state, including schools in the inner city. Other non-discriminatory methods of achieving diversity include aggressive outreach to minorities, preferences for socioeconomic disadvantage, and lessening the emphasis on standardized tests – such as the SAT – on which minorities tend to score lower.
Many universities will likely resist non-discriminatory alternatives until the Supreme Court makes it clear that diversity can never be an excuse for discrimination. Given the Court’s rejection of racial preferences in other contexts, such a statement is likely to come soon. Lawsuits challenging admissions preferences at the University of Michigan’s college and law school are prime candidates for review. Michigan needs no lessons from the University of Washington about implementing reverse discrimination. The college gives black, Hispanic, and native American applicants a 20-point bonus, equivalent to the difference between an A and B high-school average. After a defeat for preferences in the law-school case and a split decision in the college case, the suits are now before the U.S. Court of Appeals for the Sixth Circuit.
Michigan may find it easier to add points to the GPAs and test scores of minority applicants than to develop creative and non-discriminatory alternatives to preferences. And the University of Washington may believe it is more politically correct to engage in racial balancing than to seek genuine diversity. But, as an earlier generation of civil-rights activists learned, eliminating discrimination is rarely the path of least resistance. Like those earlier crusaders, students challenging admissions preferences fight on, knowing that time, principle, and the Constitution are on their side.