The central question (whether faced or evaded) in the Michigan cases, as everyone knows by now, is whether or not “diversity” is a compelling enough interest to justify racial discrimination. The administration argued no, because Michigan did not sufficiently explore non-discriminatory means of achieving it.
Most of the discussion of this tactic– a good example is the Adam Liptak article in today’s New York Times Week in Review — has focused only on the Top X% admission plans in Texas, California, and Florida. But those plans are not the only alternatives, or even the only alternatives discussed in the administration’s briefs. Consider:
Measures that ensure diversity, accessibility and opportunity are important components of government’s responsibility to its citizens
Nothing in the Constitution prevents public universities from achieving these laudable goals because there are a variety of race-neutral alternatives available to achieve the important goals of openness, educational diversity and ensuring that all students of all races have meaningful access to institutions of higher learning. For Example, universities may adopt admissions policies that seek to promote experiential, geographical, political or economic diversity; modify or discard facially neutral admissions criteria that tend to skew admissions results in a way that denies minorities meaningful access to public institutions; and open educational institutions to the best students from throughout the State or Nation. [Administration’s Grutter (law school) brief, p. 10. Emphasis added]
I have emphasized the line about modifying grade/test admissions standards because I don’t think it’s received enough attention. Think about it. Many defenders of preferences argue, along with Michigan president Mary Sue Terry, that “the quality of American higher education” will be severely compromised without racial preferences. Others argue that grades and test scores themselves are less a measure of “merit” (their quotes, usually) than of the degree of past discrimination, and so are not sacrosanct.
So far as I know, no one has argued that states have a constitutional mandate to provide a “flagship” institution, i.e., one with much higher admissions requirements, among their educational offerings, and in fact I believe many states don’t. If the need for “diversity” as currently defined is as compelling as its defenders say, why not simply lower grade/test standards to achieve it?
No one is forcing Michigan or any other university to impose standards that in practice exclude minorities. All anyone demands is that discrimination on the basis of race be abandoned.
Doug Laycock, a University of Texas law professor, is quoted in the NYT Week in Review article linked above saying that “[t]he 10 percent plan does much more damage to your admissions standards than considering race alone.” The point, however, is that those aren’t the only alternatives. In any event, has any case ever established that maintaining admissions standards as high as possible is a compelling state interest that justifies discrimination on the basis of race? It might be difficult to make that argument here since awarding racial preferences to some lower-scoring preferred minorities lowers overall standards at least somewhat.
I like high standards, but I don’t think they have constitutional standing. A bar on racial discrimination does.
