Over the past week or two the important legal resource, Findlaw, or rather a couple of its columnists, have been relentlessly attacking the Solicitor General’s brief in the Michigan affirmative action cases. Vikram Amar has two, the first, on Jan. 24, here, and the most recent, yesterday, here, that are sober, thoughtful, and in my opinion not very persuasive. Edward Lazarus has one here that is quite heated, and not very persuasive.
Amar’s first column concentrates on the question of whether Michigan’s policies constitute a quota. He thinks not, but he begins with an important question: “Why, one may ask, is a “quota” system worse than a “factor” or “plus” system?”
The short answer, he says, is because Powell in Bakke said so. In my view, however, although the discussion continues for some length, Amar never quite provides a “long” answer, or the one he does provide isn’t sufficient.
From a policy perspective, a flexible system – such as a “plus” system – that is not committed to reserving any specific number of seats for any group of applicants certainly may make great sense. Reserving a set number of seats before one sees the depth, breadth and strength of a given year’s applicant pool seems unnecessarily confining. Since diversity is but one objective an admissions policy may have, looking to see how much other objectives have to be traded off in a given year to accomplish a particular level of diversity can be quite wise.
So, as a matter of constitutional law and educational policy, the difference between a quota system and a factor, or plus, system may be quite important.
To me, this argument is completely a policy argument, not a legal argument. As I understand what Amar is saying, reserving 10% of a class for the highest scoring minority applicants is a quota, but having a flexible goal of, say, 10%-15% minority admissions — a goal, for example, that the Michigan Law School never failed to meet — isn’t. Maybe that’s true as a matter of definition, but the distinction here between a quota and a non-quota, even assuming the distinction exists, doesn’t seem very important at all.
Even Michigan’s determination to have a “critical mass” doesn’t persuade Amar the system is a quota, because in his view it doesn’t really matter how large the “plus factor” is. Amar thinks critical masses are necessary, and so of course he is untroubled by the means of achieving them.
If a school is inclined and permitted to pursue a critical mass of minority students, its admissions committee must keep its eyes on the number of minorities who are admitted and planning to enroll during each year, and also from year to year. That doesn’t mean having a quota, but it does at least mean having a target in mind – a target the school might fall short of, or exceed, but a target nonetheless.
Without such targets, there is no way to ensure diversity’s benefits. Thus, it is unsurprising that there is nothing in Justice Powell’s “factor” approach that says a university cannot adjust the size of the factor, within a year or between years, in order to make coming close to a numerical target more likely.
Just because a school cannot guarantee reaching an exact numerical target by using a quota does not mean that it need be oblivious about how its criteria are helping achieve its target range. A school with exactly 47 minority students in its class over a ten-year period probably has a quota. But a school with minority enrollment that always hovers in the 40’s may have nothing to do with quotas at all in its admissions process, and simply be using a plus system and a rough target instead. (Emphasis in original)
What about the SG’s complaint about the size of Michigan’s plusses? Again, if one believes in a diversity justification, and a critical mass approach, a big plus – like a rough target – may be an (unfortunate) necessity, depending on the character of the applicant pool.
To repeat, by the time Amar finishes explaining why Michigan’s policies aren’t quotas, it doesn’t seem to matter.
As I’ve said before, I’ve never really understood why anyone who likes preferences objects to quotas, and I’m no closer to an understanding of that after reading Amar’s first column.
The real issue, it seems to me, is whether or not racial double (or triple or quadruple or …) standards are acceptable.
Edward Lazarus’s column is a more intense denunciation of the SG’s brief, initially finding it “lacking in serious analysis and full of analytical holes.” And then it gets worse.
Indeed, the brief is so deeply flawed that it calls into question the Administration’s commitment to the best traditions of the SG’s Office and the special relationship it historically has enjoyed with the Supreme Court…. a betrayal of the SG’s basic role in our system.
Lazarus was particularly put out (as were a number of conservatives) that the SG’s brief ducked the question of whether diversity was compelling enough to justify racial discrimination.
He then spent most of his time criticizing the Top X% alternative to racial preferences, and he did so as though that were the only alternative mentioned in the government briefs. (It wasn’t, as I’ve discussed here.) Most of Lazarus’s criticisms of the percentage plans are familiar to readers here, but a couple were novel, and revealing. Consider this one:
[T]he percentage plans lead to the perverse result of admitting less qualified minority candidates at the expense of more qualified ones. Consider two minority students: One is within the top 10% of a very bad high school, whose SATs and other criteria are poor. The other is within the top 20%, but not the top 10%, of an excellent high school, with great SATs and other criteria. Under affirmative action, the latter will be accepted. Under a percentage plan, the former will be. And that’s not just a fairness problem, but a diversity problem: the underqualified former student is more likely to underperform, or even drop out.
According to Lazarus, then, qualifications are important; it is “perverse” for a policy to prefer less qualified over more qualified minority applicants; but it is perfectly legitimate for less qualified minorities to be preferred over more qualified whites or Asians or Arabs! Go figure. He also thinks the percentage plans are “not fair”:
[B]ecause of the wide disparity in quality among high schools, percentage plans tend to be arbitrary. Going to a school in one town gets a student in; going to a school in the neighboring town will get the same student rejected. It’s not fair, and students know that. And it puts minority parents to the unfair choice of sending their kids to a good high school, or to a good college, but not to both.
Having benefits bestowed according to accidents or birth or residence are thus unfair, but having them bestowed on the basis of race isn’t. This new system of fairness is a strange thing, at least to those who continue to think that discrimination on the basis of race is perhaps the fundamental unfairness.
Finally, in his most recent column, Amar also plows the now familiar ground of the percentage plans (they don’t work for professional or graduate education; they require segregated secondary schools, they are not race neutral, etc.). On the latter, race neutral point, he states:
It is one thing for a state to say, “we no longer think the SAT measures the qualities we are looking for in a college student, and for that reason, we are shifting over to other criteria.” But if states are saying, either implicitly or explicitly, “the SAT does measure scholastic aptitude, but it also leads to a segregated university, and so we are downplaying it for that reason,” isn’t that simply a race-conscious government decision that is different from affirmative action in form but not spirit?
In a word, no. It’s not the same as affirmative action. Racial preferences requires members of different races and ethnic groups to be judged by different standards. Deciding to drop the SAT, even if the purpose is to increase “diversity” as currently defined, i.e., increased representation of blacks, Hispanics, and Native Americans, does not. It’s the difference between policies that discriminate based on race and those that don’t, a distinction that appears increasingly hard for preferentialists to recognize, or in any event appreciate. The issue is not “race consciousness,” but race discrimination. They are not the same thing.
Amar, like Lazarus, is worried that the percentage plans’ emphasis on grades will lead to less qualified minorities being admitted than is the case under overt race preferences where race can be a “plus factor” of extreme weight.
The SG’s position, nevertheless, is that schools are free to pursue racial diversity only if they are willing to eliminate other criteria that they have heretofore thought important to guaranteeing excellence in academics or otherwise. But these criteria don’t need to be ignored: They, and race, can both be taken into account. That is the very message, and idea, of “plus” programs: Race is another plus among many.
The biggest question, then, that I am still left with – and the SG has not really begun to answer it – is this: Why should schools have to sacrifice their vision of academic excellence in the pursuit of racial diversity? The SG’s lack of response to this seems to me especially puzzling given that the very point of the conservative critique of affirmative action is that it fails to live up to some meritocratic ideal.
Amar, in short, wants to hang onto as much merit, traditionally defined, as he can. Ideally, I’m sure he’d love to be able to get away with race norming, taking the best of each group, but that door seems firmly closed.
If Amar and others believe diversity is as compelling an interest as they claim, they should be willing to sacrifice some other, lesser goods — like classes of students with the highest grades and test scores — in order to achieve it. But since preferences themselves compromise pure merit, that’s a hard argument for them to make. Thus they find themselves in the bind of arguing against merit when necessary to defend racial preferences, and for merit when arguing against the percentage plans.
No wonder so many preferentialists find the rejection of principle by PoMo’s such as Stanley Fish so appealing.
