Thinking Things Over: `Affirmative Action': Devil in the Details
By Robert L. Bartley

02/10/2003
The Wall Street Journal
A15
(Copyright (c) 2003, Dow Jones & Company, Inc.)

Second only to the pending war, "affirmative action" is the issue of the day. The Supreme Court will rule on racially oriented admissions policies at the University of Michigan, and the Bush administration finally filed its amicus brief. What does it say, what do Colin Powell and Condi Rice think?

The current confusion has deep roots. This society has been through slavery, the Civil War, radical reconstruction, the end of reconstruction after the disputed 1876 election, the "Jim Crow" era, and the civil rights revolution of the 1950s. In the 14th Amendment, passed after emancipation, the Constitution provides that no state can "deny to any person within its jurisdiction the equal protection of the laws." This was intended to outlaw discrimination against Negroes; surely it's progress that we're now debating discrimination in their favor.

Indeed nearly all major institutions look for ways to advance blacks and other minorities, bending over backwards to make sure they have every chance to succeed. Surely this is a good thing, both in terms of historic justice and in terms of strengthening the institutions themselves. Yet there is also a great deal of wisdom in the 14th Amendment proposition that racial classifications are inherently suspect. Society and the courts wrestle with this dilemma.

In the Michigan law school case, the Sixth Circuit Court of Appeals was sharply divided. By a 5-4 vote, it reversed the district judge's finding that the procedures were unconstitutional. The opinions included an exchange on suggestions of bad faith in timing the case to tilt which judges would hear it. The Supreme Court took the companion case regarding the undergraduate admissions program after the appellate court heard oral arguments but before it issued a decision.

Court precedents suggest that only a "compelling state interest" can justify racial classifications. Usually this means remedying past discrimination, which is not at issue in the Michigan cases. But in the landmark Bakke case, Justice Lewis Powell said that seeking a diverse student body met the compelling interest test, at least so long as race was only a "plus" in competition. With other justices split 4-4, his opinion decided the case.

Yet no other justice joined the part of the Powell opinion finding diversity a compelling interest, and the actual decision was to overturn racial quotas at the University of California Davis. The Sixth Circuit judges argue over whether Powell's comment is the law of the land or mere dicta that can be ignored. Other appeals courts are split; most notably, the Fifth Circuit found in Hopwood that mere diversity did not justify the use of racial classifications.

From the furor over the Bush administration briefs, you might suppose they urge the Supreme Court to outlaw affirmative action once and for all. To the contrary, they never make the argument that diversity is not a compelling interest. Rather, they say the case "requires this court to break no new ground" to find the Michigan procedures unconstitutional.

The Michigan law school argues that it doesn't have a quota as outlawed by Bakke. It merely ensures that each class include a "critical mass" of minorities; in practice this is a quota employing a small range rather than a single number. The undergraduate college once used a similar system, but now assigns minorities an extra 20 points in the admission process. The district judge decided that the old system was a quota but the new one is not; the Bush brief argues that it's still a de facto quota, that the change was in "the mechanics, not the substance."

The Bush brief stresses programs now used in Texas and California, admitting the top students from the state's high schools. While the rule is race-neutral, it promotes diversity because some high schools are predominantly black. These programs at least help inner-city blacks rather than middle-class suburban blacks, but run the risk of putting students into a competition for which they're not prepared. The real test is not admission rates but graduation rates.

The reality here is that the academic community is determined to credential blacks, whatever the Constitution says. Elite educational institutions can hand out prizes because they typically have 100 openings and 1,000 applicants who can do the work. The value of their credential, though, is based less on providing better education than on admitting bright students. As the Sixth Circuit's Judge Danny Boggs noted in his heated dissent, they could always achieve racially neutral diversity by conducting a lottery among all applicants meeting the minimum standards now applied to minorities.

Judge Boggs elaborates on the dangers of racial preferences. For one thing, how do you determine who's a minority -- "a drop of black blood?" Harvard last used quotas, he adds, to restrict Jews. And he cites the Supreme Court itself in the Croson case: "Classifications based on race carry a danger of stigmatic harm. Unless they are strictly reserved for remedial settings, they may in fact promote notions of racial inferiority and lead to a politics of racial hostility."

The equal protection clause, that is, is there for a reason. Do we really want to live permanently as a society where one of two neighbors in Grosse Pointe gets 20 extra points on the basis of skin color? It's one thing for the academic community to pursue its current muse, and another for the Michigan policies to be upheld and cemented as law of the land.

Yet after all this society has been through, do we really want to say it's unconstitutional ever to put race in the mix, as most of us do every day? I think maybe the Bush brief, and a separate dissent by Judge Ronald Gilman, have it about right. The Michigan procedures are clearly unconstitutional, but the ultimate disposition of affirmative action can wait another day.