moment debate
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Should the Supreme Court outlaw affirmative action in college admissions? Yes, if what you mean is outright racial preferences, that is, bonus points for being a certain race. In Grutter v. Bollinger, in 2003, the Supreme Court said it was constitutionally permissible for schools to use race as one of many factors to achieve a broadly diverse student body. It’s when you look for what proponents would call a critical mass, but what is essentially a quota, that you run into trouble. Justice William Rehnquist’s dissenting opinion in Grutter noted that the percentage of Black, Hispanic and Native American students admitted by the University of Michigan Law School each year just happened to mirror their proportions in the applicant pool. In a lot of people’s minds, that’s a quota. Sometimes people use “affirmative action” more broadly to mean combating elitism. It’s true, the best professional schools like to take graduates from the best colleges, and the best colleges like to take from the best high schools, and that practice can have the unintended consequence of suppressing minority representation. If you’re just trying to counter that effect with broader outreach, I don’t know who would object. And schools do that to some degree. But using racial preferences is easier. It doesn’t take extra money or effort to add bonus points for someone based on skin color. The Supreme Court in previous cases gave schools multiple chances to comply with the spirit of viewing race as one factor among many. But they haven’t. The Supreme Court this fall will hear two cases alleging discrimination in admissions practices at Harvard and the University of North Carolina. 18
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If there are performance gaps, race-based college admissions just papers over the problem. CURT LEVEY What do you think will happen? I don’t think it’ll be the end of racial diversity in education, but I think the court will create more of a bright-line rule saying you can’t explicitly use race. Harvard and UNC don’t deny that they use racial preferences along with other factors, so they’ll have to change what they’re doing. The pressure of political correctness on universities to have a racially balanced student body is so great that most of us on my side suspect they’ll find a way to achieve it. Are the goals of affirmative action still pressing? The top colleges and professional schools remain quite elitist, so you could say there’s still a pressing need to make them less so. Neither of my parents went to college, and I could argue that that’s a bigger disadvantage than being a minority. In that sense racial preferences actually allow schools to be more elitist, because they can say they’re diverse without being diverse in any deep way. Not that they don’t take broad diversity into account at all, but the minority students they take tend to come from professional and affluent families similar to those of the white students. Are affirmative action’s goals in conflict with other values? Of course. On the one hand we have the Constitution and Title VI of the Civil Rights Act, which on their face seem to forbid race-based admissions; on the other hand, our society has a big focus on racial diversity. How do we square these two goals? The Supreme Court has repeatedly found that the educational benefits of diversity are the only constitutionally compelling rationale for race-based admissions. Most people don’t believe that’s the actual rationale—they believe it’s to remedy historic injustice— but we’re stuck with it.
I benefited from going to a diverse college. But is that value enough to throw away one of the most important principles in our law, which is that people should be treated the same regardless of race? In a legal system where we apply the highest level of scrutiny to racial discrimination, that standard is not met by the educational benefit of diversity. Have your views evolved over time? I once saw a presentation showing that when affirmative action was first instituted, minority scores on standardized tests differed from those of non-minorities by a full standard deviation. By the 1980s that difference had narrowed to .6—evidence that affirmative action was functioning as a counterweight to disadvantage and racial preferences were working to level the playing field. But as the playing field leveled out, so did the narrowing. Why the gap persists is a big mystery, but it has to be addressed before students are 18. Racebased college admissions just papers over the problem. Is the history of quotas used against Jews a factor in your views of affirmative action? That “diversity” arguments were used to limit Jewish enrollment 100 years ago is a very good reminder of how cynical the diversity rationale is and how malleable and frankly racist it can be. There’s so little difference between saying we have to have more Black and Hispanic students and saying we have to have fewer Jewish or Asian students. And yet one is seen as noble and one as racist. Curt Levey, president of the Committee for Justice, is a constitutional lawyer who has worked on several landmark affirmative action cases.
SPRING ISSUE 2022
debate_spring2022_v7.indd 18
3/26/22 11:17 PM
