The U.S. Supreme Court’s decision last week to review two cases on affirmative action in higher education could lead to profound changes in the way universities admit students and in the racial profile of entering classes. The high court will review challenges to undergraduate (one case) and law school (the other) admissions policies at the University of Michigan. Both cases began with lawsuits by white students who were denied admission, then claimed they were victims of illegal discrimination because of the university’s affirmative action policies.
The plaintiffs lost their cases in lower courts, which found the use of race in admissions at Michigan to be reasonable and consistent with the Supreme Court’s landmark 1978 Bakke decision on affirmative action. Other federal appeals courts have ruled differently in recent similar cases, making the issue now ripe for Supreme Court review.
In the Bakke case, a rejected white applicant sued the University of California at Davis medical school over its practice of reserving a specific number of places for minority students. The Supreme Court ruled that the medical school’s use of a quota was unlawful, and Allan Bakke was ultimately admitted to the school. But even as it rejected the approach at UC-Davis as too heavy-handed, the Bakke court found a compelling state interest in giving universities the latitude to foster and maintain diversity in higher education, and said that universities can treat race as a decision factor among many in admissions judgments. The Bakke ruling has been controversial not only because it endorsed a somewhat nebulous standard for affirmative action in practice, but because it came in an unusually fractured court decision, leading some to question its role as binding precedent.
The cases from Michigan now invite the Supreme Court to undo Bakke and dismantle affirmative action in college admissions. Lawyers for the white student plaintiffs argue that there is simply no compelling state interest in diversity in higher education, and that even if there is, the admissions practices at Michigan are not sufficiently narrow in design and scope to meet that interest without trampling rights to equal protection.
Beyond the legal arguments, critics say affirmative action is bad policy because it privileges diversity over qualifications. Linda Chavez, who heads the anti-affirmative action Center for Equal Opportunity, sees the University of Michigan evaluating minority applicants with “a lower standard” that “undermines the mutual respect that is essential in an increasingly multiethnic, multiracial America.”
Lawyers for the Michigan law school say the goal is merely to assess an applicant’s “promise of making a notable contribution to the class by way of a particular strength, attainment or characteristic,” such as through unusual achievements, experiences or personal background. By evaluating each applicant individually, they argue, the practice fulfills the school’s (and state’s) diversity interest well within the spirit of the Bakke decision.
The Michigan approach is legally and socially reasonable because it recognizes that comparing the academic potential of differently talented individuals is an inherently subjective process. It’s old news that average scores on tests such as the SAT are higher for whites than blacks, and that universities practicing affirmative action enroll classes having lower average test scores for minorities than whites. But it’s also old news that these differences can be explained by factors other than academic achievement and potential, and that the “numbers” in an applicant file are a flawed way to measure the promise or peril of affirmative action.
Those who want the Supreme Court to bury affirmative action for good have some interesting hypothetical arguments on their side—who, after all, wouldn’t like to indulge the fantasy of an impeccably fair and meritocratic color-blind society? But in the real world of ethnic conflict and racial divide, the bigger fantasy is the argument that universities (and the states that fund them) don’t have a compelling interest in exposing students to the variety of people and viewpoints that only a diverse classroom can create.
Affirmative action opponents seem unconcerned with warnings from University of Michigan lawyers that overturning Bakke would result in “the immediate resegregation of many—and perhaps most—of this nation’s finest and most selective institutions.” A few states that have abandoned affirmative action have sought to sustain undergraduate minority enrollments by guaranteeing college admission to students who graduate in the top 10 percent (or some other specified percentage) of their high school classes. This system creates a peculiar incentive for parents to keep their kids in poor schools where it might be easier to surpass that threshold for college admission, and, perversely, it does an even better job expanding minority college enrollment to the extent that public secondary education remains largely segregated.
Affirmative action as it is practiced at the University of Michigan is a mild but (unfortunately) necessary remedy for the inherently unequal footing on which applicants compete in an America that remains all too educationally and emotionally segregated. The issue is stoked by self-righteous critics and litigants who have reframed affirmative action as a systematic entitlement for underqualified minorities at the expense of deserving Caucasians. Of course, the credibility of their crusade for meritocracy is just a wee bit compromised by indifference to other forms of preferential treatment, such as the admission of “less qualified” athletes or children of alumni donors. Funny how that works.
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