Curt Levey, director of legal and public affairs at the Center for Individual Rights, which represented the plaintiffs in the Michigan cases, argues in the Chronicle of Higher Education that “Colleges Should Take No Comfort in the Supreme Court’s Reprieve.” (Link requires subscription)
The Court’s decisions, Levey reminds us,
make it clear that race must be used in a “flexible, nonmechanical way” and cannot generally be a “decisive” factor. Instead, colleges must engage “in a highly individualized, holistic review of each applicant’s file, giving serious consideration to all the ways an applicant might contribute to a diverse educational environment.” As Grutter stated, the “critical criteria” in such a review “are often individual qualities or experience not dependent upon race but sometimes associated with it.” Yet higher-education institutions may not treat race as if it “automatically ensured a specific and identifiable contribution to a university’s diversity.”
Moreover, the Supreme Court required that colleges engage in “serious, good-faith consideration of workable race-neutral alternatives that will achieve the diversity the university seeks.” Such alternatives typically involve taking socioeconomic, educational, and other types of disadvantages into account, whether explicitly or through indirect mechanisms like percentage plans. The court, noting the “wide variety of alternative approaches,” said each institution must “draw on the most promising aspects of these race-neutral alternatives” and must conduct “periodic reviews to determine whether racial preferences are still necessary” in order to “terminate its race-conscious admissions program as soon as practicable.”
Levey also contends that the 25 year “sunset provision” is a real and not merely cosmetic limitation .
While some have deemed that limit to be the court’s hope rather than an essential part of its holding, that reading ignores the immediately preceding paragraphs, which emphasize that the grant of compelling-interest status to student diversity is conditional on that limit. The bottom line is that any higher-education institution still using race-based admissions 25 years from now will be doing so without the Supreme Court’s sanction.
Levey’s warnings are surprisingly echoed in a somber and restrained comment on the cases by Martin Michaelson, who for years has been defending race preferences in court. (Link requires subscription) Michaelson submitted a brief in the recent cases on behalf of 54 higher education associations, but the tone of recent comment is strikingly similar to Levey’s. A strong theme in both opinions, Michaelson wrote,
is a deep skepticism that affirmative action, in practice, is fair. No justice embraced the view that four held in Bakke (a view that Michigan did not argue for) that societal discrimination justifies race-conscious admissions. The court’s attitude that affirmative action is a kind of exceptionalism — to be strictly scrutinized and not overindulged — will challenge higher education.
Justice O’Connor’s defensive tone in Grutter is telling, as she depicts hurdles that institutions will face in using race-conscious policies. As she characterized it, the law-school policy is acceptable because it: focuses on “academic ability coupled with a flexible assessment of applicants’ talents, experiences, and potential ‘to contribute to the learning of those around them'”; “requires admissions officers to evaluate each applicant based on all the information in the file”; “does not restrict the types of diversity contributions eligible for ‘substantial weight'”; “does not define diversity solely in terms of racial and ethnic status”; does not “seek to admit any particular number or percentage of underrepresented minority students”; and often admits nonminority applicants whose grades and test scores are lower than those of rejected minority applicants. Underscoring his acute discomfort with the decision, Justice Kennedy, in dissent, pointed to the “safeguard [of] rigorous judicial review” of affirmative action, which, he said, the Grutter majority failed to give. That the court expects institutions to cease diversity-enhancing race-conscious affirmative action 25 years from now is of a piece with that exceptionalist view. Durational limits are conventional and sensible where affirmative action is taken to remedy discrimination; remediation is by nature temporal. A time limit does not, however, well fit enhancing diversity, which administers not a remedy but an inherent academic value.
Since Michaelson is the lawyer for the educational establishment, you might think his caution would be taken to heart. I take that back. If you were the sort of person who might think that, you probably wouldn’t be reading this blog. In any event, you skeptics out there are proven right, again. Last Wednesday, according to an article in today’s Chronicle, leaders of 48 colleges met at Harvard to discuss how to protect preferences in perpetuity. According to the understated, laconic lead, “[r]ace-neutral alternatives to affirmative action attracted little interest….” (Link requires subscription)
Several of those present said they planned to focus on finding ways to shield race-conscious admissions policies against future legal challenges, rather than experimenting with the alternatives to affirmative action being promoted by the Bush administration and some conservative activists.
Not to mention the Supreme Court. And, of course, that’s precisely what happened: Justice O’Connor’s requirement of serious consideration of race-neutral means of achieving diversity, etc., was not discussed.
The event’s leaders said that much of the participants’ attention focused on how colleges can best justify racial and ethnic diversity as central to their missions. Those on hand also discussed several areas in which they saw a need for additional research, such as the appropriate use of testing, the question of how to define academic “merit,” and how colleges can make the best use of diversity on campuses….
Justice O’Connor’s admonition regarding race-neutral alternatives to affirmative action barely came up, meeting participants said.
And the 25 year sunset provision? What sunset? The participants were busy laying plans to insure that the sun will always shine on race preferences.
The leaders of the Harvard gathering also said that participants discussed the 25-year deadline for race-conscious admissions suggested by the Supreme Court, and concluded that broader societal changes are needed if the deadline is to be met.
Anyone wishing to contribute to Ward Connerly’s American Civil Rights Institute should go here.
Levey: “As Grutter stated, the ‘critical criteria’ in such a review ‘are often individual qualities or experience not dependent upon race but sometimes associated with it.'”
I guess I would like to see some specific examples of what those qualities and experiences are, from the viewpoint of a person who participates in this kind of decision-making.
Also, by the time Michaelson is through describing the ways race is not to be taken into account, it looks almost like the only thing left is that they can still have a box for kids to check what race they are. What’s left?
Re: the description of the Harvard meeting. It brings back memories from my teen years reading newspaper accounts of state and federal elected politicians holding numerous meetings to “focus” on ways of insuring the perpetuation of a widely-accepted system based upon race preferences. The cast of officials in question included from time-to-time, Orval Faubus, George Wallace, Strom Thurmond, Richard Russell, William Fulbright, John Stennis, etc. Seems like old times.