Michael Kinsley begins his Slate article, “Bakke to the Drawing Board,” on a promising note. The Bakke opinion, he writes, “never made any sense.” By outlawing outright quotas while encouraging covert ones with its allowance of taking race into account as a “factor,” it attempted to split the difference between the views that state-sponsored racial discrimination is never justified (the view of the civil rights movement until the late 1960s) and the view that it is justified if the purpose or effect is to compensate for past wrongs or promote future diversity.
“Trouble is,” Kinsley writes,
the Constitution is not supposed to split the difference. It is supposed to declare basic principles. And as a matter of principle, there is no difference between considering race as a factor and considering race as a quota.
And, the last 25 years have proven, there is even less of a difference in practice. The “factor” loophole has proved wide enough for admissions officers to design programs whose result is indistinguishable from fixed quotas.
When Kinsley turns his considerable talents from criticizing Bakke to arguing that it not be overturned, however, his arguments seem, at least to me, strained, confusing, and even opaque.
1. The complaining whites would (might) not have gotten in even if there had been no racial preferences.
Undoubtedly, Alan Bakke would have been admitted if he had been black. But that’s not the right question. The right question is whether, as a white, he would have been admitted to medical school if all those places weren’t reserved for blacks.
The same question arises in the current case, Grutter v. Bollinger….
No, that is precisely the wrong question. The right question, as the court must recognize, is whether using race to admit some applicants and reject others violates the Constitution and/or civil rights laws. If there had been no preferences and Bakke and Grutter had not been accepted, they would not be able to argue that race kept them out. But so what? If my dog were a bird she could fly.
Both sides can play this what-if game. What if, back in the bad old days before racial discrimination had been (temporarily?) discredited, the universities of Alabama, Mississippi, Texas, et. al. had been clever enough to make Kinsley’s (and Michigan’s) argument that most, or at least many, black students were so unprepared that “the likelihood” that most black applicants would have been admitted even in the absence of racial discrimination is, as Kinsley argues here, “very small.” Perhaps Kinsley would have stood in the schoolhouse door with Gov. Wallace, as he is doing now with Michigan administrators, but I doubt it.
2. “[W]e should also consider the effect on Grutter’s chances if she found herself competing against blacks and other minorities who had experienced the same variety of advantages and disadvantages as the white candidates in the applicant pool.”
Here, I confess, I don’t understand what Kinsley is trying to say. It has something to do with the “anomaly” of what Kinsley admits is “reverse discrimination” being allowed as a remedy for past discrimination but not allowed “voluntarily.” Now I also think that the “remedy” justification is somewhat hazy where the beneficiaries are not actual victims (Podunk U. can discriminate against innocent white applicants and in favor of minorities who are not themselves victims today if it can prove that it discriminated against others in the past), but I don’t think that’s Kinsley’s objection. Or maybe it is. But if that’s the problem, the solution would seem to be ending all discrimination based on race, not letting it continue “voluntarily” to end some “anomaly.”
3. There is no guarantee that any particular beneficiary of affirmative action has had it worse than any particular victim of it, and no reason at all to suppose that Barbara Grutter is responsible for the nation’s past and present failures of equal opportunity. But in applying for a place at a highly selective law school, she surely benefited from the special burdens history has put on some of her competitors. And if justice entitles her to the higher chance of admission to Michigan Law School that she would have enjoyed if there was no reverse discrimination, that calculation should also reflect the lower chance she would have had if there was no discrimination of the traditional sort either. Putting all this together makes it even less likely that unfair discrimination kept Grutter out of law school.
Here, once again I confess that I simply don’t understand what Kinsley is trying to say. He recognizes that many beneficiaries of racial preferences have had it no worse than many victims, but says they still deserve the preferences because the victims have “benefited from the special burdens history has put on some of [their] competitors.” So, because whites have generically benefited from burdens placed on blacks over time, they can be discriminated against because of their race? One could argue that, I suppose, just as one could defend discrimination against Protestants for the generalized benefits they have received from burdens placed on Catholics –and both those groups because of what they did to the Jews — but not under a legal regime that purports to protect “any person” from discrimination based on race or religion.
4. “Affirmative action is a grievance machine.” But we don’t have to take that argument seriously because those disgruntled whites and their lawyers bringing these complaints are “methodically and unjustifiably rubbing those nerves raw.” Oh, come on. This is like blaming the abolitionists and not slavery for causing the Civil War. (If one regards it as The War of Northern Aggression, then one believes the abolitionists did cause it.)
Besides, it begs the question: these complaints are unjustified only if racial discrimination is justified.
“No, [consideration of whether or not the plaintiffs would have been admitted under a constitutional admissions program] is precisely the wrong question. The right question, as the court must recognize, is whether using race to admit some applicants and reject others violates the Constitution and/or civil rights laws.”
Both issues need to be addressed to some degree. One concerns the propriety of the challenged admissions process under the 14th Amendment, while the other concerns whether or not the plaintiffs have standing to bring the suit in the first place (and if they don’t, the court has no jurisdiction under Article III to consider the case). If the suit had been brought by a bunch of white guys with marginal grades and horrendous LSAT scores, then a strong argument could be made that regardless of the merits of the challenged program, these were the wrong plaintiffs to challenge it.
That said, it’s a pretty tall order to ask the plaintiffs to prove that they would have been admitted under a race-neutral program. Unless they were waitlisted, how is any individual to know if he/she is among the “lucky” 20-30 who would have been admitted if that many more seats had been made available to everyone on race-neutral admission criteria? Only the admissions department knows (or can know) who these people are, and they’re not talking. Instead, it should be enough to establish standing by demonstrating that the plaintiffs had a decent chance of admission under a constitutional process, that they were denied admission under an unconstitutional one, and that as a result, there is a substantial likelihood that the unconstitutionality of this process resulted in their rejection.
I can think of one, and only one group that could meet the Kinsley standard and all but “prove” that its members would have been admitted if not for the racial set-asides. Anyone who was waitlisted, and not called up from the waiting list, probably came close enough to admission that they can chalk it up to affirmative action. I fall into that group myself, having been waitlisted there in 1999. I advised CIR of my situation while they were looking for plaintiffs, but I also advised them that I was halfway through my first semester at Boalt and had no desire to transfer to Michigan if I prevailed. That made me a bad plaintiff for a different Article III reason: mootness. My guess is that most of the other people on Michigan’s waiting list had a similar story.
Thus, under the Kinsley standard, the game would probably continue forever. Sure, we’d all know that this constitution violation was out there, but the few who can prove they are victims didn’t want to go there anyway, and the rest of the victims are unknown and unknowable. Even if CIR managed to stumble on the right 30 plaintiffs by dumb luck, the university could argue with a straight face that those 30 candidates would not have been admitted anyway. It would be a lie, of course, but who would be able to call them on it, and how?
“having been waitlisted there in 1999.”
The number was a brain-o on my part; it should say 1996.
Jeff – Very interesting comments. Presumably the blacks excluded from Southern universities wouldn’t have had as high a “Kinsley obstacle” to overcome because those universities tended not to have selective admissions. (But what of the U. Texas law school when it excluded Heman Sweatt? Was it selective? Would he have had to prove that he would have gotten in w/o racial exclusion? I don’t know.) What, one wonders, would Kinsley say of the Jews who were kept out of Ivy League schools and professional schools for years? Jews were not barred, as were blacks in the South; there were simply quotas that significantly reduced the numbers admitted. Should a Jew excluded from Columbia or Yale under that system have had to prove that he would have gotten in w/o the quota? Clearly, race preferences and quotas “work”; they admit some of the preferred who would not have been admitted absent the preferences, and don’t admit some of the unpreferred. If courts refuse to hear challenges from possible victims, then they, or Congress/legislatures, should require the universities to reach a conclusion about every applicant and release the names of those who were not admitted because of racial preferences to others.