Hoover Daily Report

Bad Law, Less-Bad Results

Monday, July 28, 2003

As a student of the law, I reject an interpretation of the Equal Protection Clause that permits state universities to use race as one of their admissions criteria.

As an educator, I denounce our selective institutions purporting to serve students by admitting those whose academic qualifications fall far short of the majority and who predictably wind up in the bottom quarter of their class.

As a citizen, I am appalled when "diversity" quickly translates into de facto segregation at student living facilities, campus gathering places, even graduation ceremonies. I oppose Law Review places allocated by race rather than by grades or research skills. I share with John McWhorter of the University of California a sense of horror at the mind-sets—victimization, self-separation, and anti-intellectualism—we are producing among the intended beneficiaries of race preferences.

All that said, I was not totally displeased by the Supreme Court decision permitting the University of Michigan to admit a "critical mass" of minority students. My reasons are threefold: California, Texas, and Florida. I have seen the future and it does not work. Let me explain.

Through referendum, judicial decree, or executive order, each of these jurisdictions was compelled to abandon race-conscious university admissions. At each state's most selective institutions, the first result was a sharp decline in the number of entering minorities. Particularly in California, the predicted process of "cascading" occurred, as students with less-impressive academic credentials found a better match at less-competitive institutions.

In educational terms, this is not a bad result. The discarded systems had employed naked discrimination to inflate the numbers of minority students. Minorities had been stigmatized as inferior students. They had flocked to less-demanding majors. Disproportionately, they had left school before graduation. With those problems abated, society could turn to the essential task of improving minority education in grades K–12, eventually enabling them to return to the elite schools in robust numbers and as equals in every respect.

But what seemed logical proved politically untenable. The most vocal political communities and their academic allies demanded that the old racial balances be restored. Overnight, the test of the new system became how quickly it could be made to mirror the old one.

Texas guaranteed university places to anyone graduating in the top 10 percent of her or his high school class. Florida tried race-conscious scholarships. UCLA Law School offered admission preferences to students electing to study Critical Race Theory. Cal-Berkeley threatened to abandon the SATs.

Minority enrollment rebounded dramatically, as would have happened at Michigan, too, despite the law school complaint that race-blind standards would cut minority enrollment from 14.5 to just 4.0 percent. But the new schemes were far riskier to quality education than the old system of preferences, which at least identified the most qualified students of each race.

Eventually foes of race preferences would have faced a Hobson's choice: Accept the new practices. Battle the new evasions in the courts, case by controversial case. Or turn the issue into a bruising national political battle—mobilizing majority support against the minorities.

Against those choices, even a bad Supreme Court decision is to be preferred.