Hill of Beans: No Action

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Last week, President Bush submitted two amicus curiae briefs to the Supreme Court, regarding the University of Michigan’s affirmative action program. The controversial admissions program ranks applicants on a 150-point scale, and awards a 20-point "bonus" right off the bat to blacks and selected other minorities. The admissions regime once had two tracks–one for whites and one for targeted minorities–and it protected those minorities from direct competition with the wider pool. The Bush administration, quite correctly, held that this made it a de facto quota system, and thus "plainly unconstitutional."
Supporters of the president have hailed the briefs as inaugurating a new era of race-blind, quota-free aid to the nonwhite. It would replace a bean-counting reverse racism with "what the Army has done," as Tennessee Republican Sen. Lamar Alexander hopefully put it. But Democrats went berserk. According to Senate Minority Leader Tom Daschle, the administration has proved itself willing to "side with those opposed to civil rights and opposed to diversity in this country." University president Mary Sue Coleman complained, "It is unfortunate that the president misunderstands how our admissions process works at the University of Michigan."

Alexander, Daschle and Coleman are–in their different ways–completely wrong. The Bush memos are the most important substantive defense of affirmative action ever issued by a sitting president. If the Court accepts the president’s reasoning, it will have rescued affirmative action from what appeared to be a terminal constitutional illogic. More than that–it will have secured for this rickety program an indefinite constitutional legitimacy.

Affirmative action has been fragile since Regents of the University of California v. Bakke (1978). Back then (if I may simplify), the Court ruled that race-based quotas were illegal, but permitted race to be taken into account as a "plus factor" in admissions. Increasingly over the last two and a half decades the rationale for that plus factor has been "diversity." Diversity, in fact, is the stated rationale behind the University of Michigan’s modus operandi. Unfortunately for proponents of affirmative action, "diversity" has always been a vague concept–and it has never been clear whether, as a matter of law, it was sufficient grounds for flirting with racial discrimination against majorities. In Wygant v. Jackson Board of Education (1986), a plurality found against an affirmative action program justified on the grounds of diversity. And in the current controversy over the University of Michigan, many conservatives–including Florida Gov. Jeb Bush–have taken Wygant as a starting point for rejecting the diversity rationale. In an amicus curiae brief of his own, filed last week, the Florida governor noted: "This Court specifically indicated that such a theory has no logical stopping point, and would allow discriminatory practices long past the point required by any legitimate remedial purpose… Racial diversity is no more compelling a goal in the higher education context than in the context of other institutions or areas of state decision making."

That is not the view of our president. One of his briefs specifically endorses the diversity criterion. It runs: "Ensuring that public institutions, especially education institutions, are open and accessible to a broad and diverse array of individuals, including individuals of all races and ethnicities, is an important and entirely legitimate government objective. Measures that ensure diversity, accessibility and opportunity are important components of government’s responsibility to its citizens." It would be difficult to find a more hardline defense of the doctrine of diversity-for-its-own-sake anywhere in the Democratic Party. It would also be difficult nowadays to name a school that violates these ideals, aside from maybe Bob Jones. (Didn’t the president campaign there once?)

This is where the president’s brief gets tangled up in either its own illogic or its own dishonesty. The White House, again, is appalled by "quotas," and it has a smoking gun to prove that Michigan was using them. From 1995-’98, Michigan had an actual, explicit quota system. And in discussing the program that replaced it after 1998, the university admitted openly that it wanted, in the brief’s words, to "change only the mechanics, not the substance, of how race and ethnicity were considered."

The problem is, this is precisely what the administration wants to do itself. Nowhere does it express the slightest gripe about the demographic or academic outcomes generated by Michigan’s race-focused policies. Indeed, it promises solemnly to replicate them. It merely wants to obtain those results without saying the dirty word "race." So it recommends a set of bogus procedures that lead to exactly the same end. "[U]niversities may adopt admissions policies that seek to promote experiential, geographical, political or economic diversity," write the President’s Men. Universities can also "modify or discard facially neutral admissions criteria" [in other words, board scores and grades] "that tend to skew admissions results in a way that denies minorities meaningful access" [in other words, admission] "to public institutions."

"The government," according to the brief, "may not resort to race-based policies unless necessary." It sounds like Bush is arguing that race-based policies are always necessary–since elsewhere in his brief he says that diversity is "an entirely legitimate government objective." That is indeed what he’s arguing for, but more disingenuously than, say, Bill Clinton would have.

Bush, to let him make the case in his own words, wants to use "race-neutral alternatives" to achieve exactly the same race-conscious results that Michigan has been obtaining for years. And he has a "race-neutral" model in mind: the "affirmative access" program he initiated while he was governor of Texas. Under this program, the top 10 percent (by grade point average) of students in every high school in Texas are automatically admitted to any state university they choose. This tends to produce college-admissions results that mirror the ethnic composition of the state. But the reason it produces affirmative-action-compatible results is that the state’s schools are so heavily segregated–if they were integrated you would have the same problem of whites being disproportionately represented in that "talented tenth." (Other problems include overcrowding and plummeting academic standards at the state’s flagship Austin campus, but that’s another article.) As Terrence J. Pell of the Center for Individual Rights argues, such programs are not really race-neutral; rather, they involve "reverse engineering the admission system to get a certain racial outcome."

The fancy, legalistic way of describing what Bush’s Texas program possesses and what Michigan’s lacks is "narrow tailoring." Old-fashioned affirmative action, the Bush reasoning goes, uses the broad-brush criterion of race. "Because it operates much like a rigid, numerical quota," the brief says, the university’s "policy imposes unfair and unnecessary burdens on innocent third parties." Bush-style "affirmative access," by contrast, directly attacks the real problem, which is kids who are for socioeconomic reasons stuck behind the eight ball, regardless of what race they belong to. But on closer examination, Bush’s policy imposes just as many burdens; it merely makes those aggrieved innocent third parties harder to identify and help. The working-class black kid who finishes 29th in a class of 300 at a lower-class school full of dropouts may not be a rocket scientist, but he’s got it made–he’s off to Austin. The identical working-class black kid whose parents have made the fatal mistake of enrolling him in a challenging school full of overachievers and who finishes 31st in a class of 300…well, he’s destined to a life working at the car wash.

"In light of these race-neutral alternatives," the president complacently concludes, the University of Michigan "cannot justify the express consideration of race." This sounds like it’s anti—affirmative action, but the "express consideration of race" that Bush pretends to deplore is a synonym for frank consideration of race. And that is all the difference between affirmative action and Bush’s phony alternative. The Bush plan achieves everything affirmative action does, only less honestly. In so doing, it manages to give affirmative action not just a new lease on life, but a good name.

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