The Beginning of the End for Bakke

Tuesday, April 30, 2002

The regime of race preferences in college and university admissions established in the wake of the Supreme Court’s decision in the 1978 case California Board of Regents v. Bakke may now be coming to an end. The battleground is the University of Michigan and its law school, both of which have routinely accepted African American, Hispanic, and Native American candidates with academic credentials, which, if belonging to whites or Asian Americans, would have produced prompt rejection.

The preferences were applied in mechanical fashion to all applicants of the favored groups. So intense was its thirst for minority undergraduate students, and so slim were the pickings, that university officials testified they had accepted every "qualified" high school graduate—defined as having the requisite academic wherewithal to avoid flunking out—of a preferred group. In terms of law school applicants, in certain "cells"—organized to denote applicants with similar LSAT and GPA indexes—every minority applicant was admitted and every white applicant was rejected.

But there is nothing mechanical about the defense Michigan has mounted. Relying on its interpretation of Bakke, the university claims its admissions policies can survive the "intense scrutiny" test (proclaimed by the Supreme Court for cases involving racial or ethnic classifications) because of its "compelling interest" in achieving ethnic and racial diversity on campus.

"Under the University of Michigan law school’s admissions procedures, blacks or Hispanics are dozens—even hundreds—of times more likely to gain admission than whites with similar academic credentials."

The undergraduate and law school admissions cases were at first considered separately by U.S. district court judges, Michigan prevailing in the undergraduate case and white students denied admission to the law school winning their opening round. The legal issues, however, are identical, and the cases were consolidated for oral argument before the Sixth Circuit Court of Appeals on December 6. Regardless of how that court rules (six of the nine judges were appointed by Democratic presidents), a review by the U.S. Supreme Court is regarded as a near certainty, if for no other reason than to resolve conflicting interpretations of Bakke within the various federal circuits.

The Case Law: Bakke and Its Progeny

Allan Bakke challenged medical school admission practices at the University of California, Davis, which set aside 16 places in each entering class of 100 for preferred minority students. Four Supreme Court justices, led by John Paul Stevens, concluded that all such preferences violated Title VI of the Civil Rights Act. Four others, led by William Brennan, argued that "benign" as opposed to "invidious" racial discrimination should be subject only to intermediate court scrutiny, which simply requires a rational basis for the state’s action—a basis the Brennan group found in the need to remedy the effects of past discrimination.

Attempting to walk a tightrope between the two camps, Justice Lewis Powell held that strict scrutiny applies and that no arbitrary reservation of places or other formulistic consideration of race could pass constitutional muster. Nor did such laudable goals as helping victims of societal discrimination or improving the delivery of health care to minority communities provide the missing compelling interest. But Powell abruptly found the school’s interest in "the attainment of a diverse student body" sufficient to justify some race consciousness: "This clearly is a constitutionally permissible goal for an institution of higher education. Academic freedom, though not a specifically enumerated constitutional right, long has been viewed as a special concern of the First Amendment. The freedom of the University to make its own judgments as to education includes the selection of its student body." Powell also warned against anything resembling quotas, saying that only "a properly devised admissions program involving the competitive consideration of race and ethnic origin" could be sustained.

"Ten blacks with 1500 SATs and 3.85 GPAs may do more to erase stereotypes than 100 blacks with 950 SATs and 2.8 GPAs."

The Brennan group did not join this section of Powell’s opinion. To the contrary, Brennan said Powell’s reliance on diversity to justify race preferences "is constitutional under our approach so long as the use of race to achieve an integrated student body is necessitated by the lingering effects of past discrimination," precisely the approach Powell had rejected.

Thus there were shifting court majorities behind the two central Bakke holdings: (1) the UC-Davis admissions system was illegal, but (2) some race-conscious procedures may not be. But no central proposition commanded a majority, least of all Justice Powell’s argument that universities have an implied First Amendment right to consider race in achieving classroom diversity.

In the intervening years, public and private colleges and universities used the diversity umbrella to shield programs that, in many cases, were little more than disguised quota systems and that would have been held unconstitutional even under Powell’s nearly inscrutable standard.

The University of Texas law school, responding to an executive branch directive "to achieve and maintain relative parity in higher education among all of the state’s population groups," developed an admissions process that divided applicants by race—even color coding certain files, which had different "presumptive admit" and "presumptive deny" scores for whites and favored minorities. This magically produced classes including at least 5 percent black and 10 percent Hispanic students, few of whom would have survived a race-neutral procedure. In 1996 the Fifth Circuit Court of Appeals, in Hopwood v. Texas, declared the process unconstitutional, holding unequivocally that diversity was never held to be a compelling need by a Bakke majority and "that any consideration of race or ethnicity by the law school is not a compelling interest under the Fourteenth Amendment."

"The University of Michigan is engaged in a desperate attempt to create a constitutional doctrine out of one eccentric Supreme Court decision."

In another case producing an important decision, the University of Georgia (UGA) awarded favored minorities merit points in its admissions process. Again the justification was the claimed need for diversity in the student body. In August 2001 (in a decision written by Bill Clinton appointee Stanley Marcus), the Eleventh Circuit Court of Appeals rejected the Georgia system. Here the court declined to decide the question of whether diversity can ever be considered a compelling state interest, holding instead that, even if it were, the Georgia approach is not "narrowly tailored" to achieve the goal. Diversity may be important, said the court, but "racial diversity alone is not necessarily the hallmark of a diverse student body, and race is not necessarily the only, or best, criterion for determining the contribution that an applicant might make to the broad mix of experiences and perspectives that creates the value UGA asserts in diversity." For example, a white boy raised in poverty in Appalachia "may well have more to offer a Georgia public university such as UGA—from the standpoint of diversity—than a nonwhite applicant from a suburban Atlanta high school." Race, said the court, is simply not a proxy for diversity.

A Quota by Any Other Name

Although Michigan’s undergraduate and law school admissions procedures differ in technical nuance from each other, as well as from Texas and Georgia, both Michigan procedures award heavy advantages to African American, Hispanic, and Native American applicants. For undergraduate admissions, for instance, the school compiles a "selection index" based on a variety of academic and other factors and scored on a scale of up to 150 points. Being a member of a favored minority group earns an applicant 20 points—8 more than a perfect ACT/SAT score, 12 more than selecting a challenging high school curriculum, 15 more than personal achievement or leadership on the national level, and 17 more than an outstanding essay. Undisputed evidence shows that blacks or Hispanics are dozens—even hundreds—of times more likely to gain admission than whites with similar academic credentials. Not surprisingly, the end result of the process is acceptance of a class where white and Asian academic credentials far surpass those of the favored minorities.

Law school policy maintains that minorities must be admitted in numbers sufficient to form a "critical mass," so that none will feel isolated. In practice, this has meant admissions standards sufficiently elastic to result in 11 to 17 percent enrollment of favored minorities, something the district court found "practically indistinguishable from a quota system."

To underline its "compelling interest" claim, Michigan produced a report by "expert witness" Patricia Gurin, a professor of psychology and women’s studies at the school, purporting to show that racial and ethnic campus diversity produces desirable academic outcomes, such as a more creative and artistic atmosphere and an activism for good causes. Supporting testimony was offered by William Bowen and Derek Bok (coauthors of The Shape of the River, an impressive if deeply flawed defense of race preferences at elite universities), distinguished historian John Hope Franklin, and others. The school has also marshaled the support of scores of businesses and professional organizations—ranging from General Motors to the American Bar Association—urging the need for educational diversity as a prelude to employment in an increasingly diverse society.

When a state university concedes that it has, over the past decade or two, rejected thousands of white and Asian applicants, in favor of blacks and Hispanics with lower academic credentials, and claims its discrimination is justified by the compelling need for diversity, a court has the right to expect that a clear and convincing case be made demonstrating the kind of benefits that have been achieved. Among the questions one would hope to have answered are the following:

1. How have the beneficiaries of racial and ethnic preferences performed academically?

2. Have they pursued such challenging majors as history, philosophy, political science, engineering, mathematics, and the hard sciences, or have they instead gravitated toward such fields as psychology, sociology, and black studies?

3. What have been the results of interaction between those minorities admitted under race-preference programs and those whose academic credentials earned admission? Has the former group exerted a positive or a negative influence on the latter?

4. Have the favored minorities sought opportunities to interact with the white and Asian communities, or has there been a substantial amount of self-segregation in such areas as dining, housing, and recreation?

5. How have the favored groups fared in graduate school and beyond? What are their records in law school, medical school, and other graduate programs? How have they performed on bar examinations and medical qualification tests? In what numbers have they made partner in their law firms? Are they qualifying in satisfactory numbers to practice their medical specialties? How many have gone on to academic careers? What have they published? Are they earning tenure?

Instead Professor Gurin provided one reassuring summary statement and a wealth of data that failed even to attempt to substantiate it. Gurin stated: "A racially and ethnically diverse university student body has far-ranging and significant benefits for all students, non-minorities and minorities alike." But she never attempts to present a statistical link between what she calls "structural diversity"—the percentage of blacks, Hispanics, and Native Americans on campus—and desirable educational outcomes. In a devastating critique of her report, the National Association of Scholars points out the reason for this fatal omission: Professor Gurin’s critical data are merely a subset of a mammoth, highly respected 1993 UCLA study that concluded that increasing or decreasing the number of blacks and Latinos on campus produced virtually no quantifiable educational outcomes, positive or negative.

"In recent cases the Court has taken a limiting view of what government may do to tamper with the equal protection clause, even for the most laudable purposes."

With the data on which she relies disconfirming her central thesis, Professor Gurin offers instead a series of statistically significant but trivial correlations between student participation in what she calls "diversity activities"—such as enrolling in an ethnic studies course or discussing racial-ethnic issues—and both personal and "citizenship" results. For example, those who participated in such activities are more likely than others to have "the highest post-graduate degree aspirations" or to consider it important to influence the political structure or to be personally involved in programs to clean up the environment. In its critique of the Gurin report, the Center for Equal Opportunity suggests that Gurin’s "citizenship" categories "appear to be proxies for political liberalism." Items such as appearing at an anti-abortion rally, lobbying to reduce federal taxes, or participating in a free speech movement fail to make the Gurin citizenship list. Even laying aside these complaints, the Gurin argument is irrelevant: It is entirely possible to take an ethnic studies course or discuss racial-ethnic issues regardless of the percentage of minorities on campus.

The lack of any proven correlation between simplistic diversity formulations and positive academic outcomes should come as no surprise, particularly to those with university teaching experience. Diverse views grounded in life experiences may be treasured in a political science class, where the issue is reparations for slavery, but less so in a chemistry lab. A white person who has grown up abroad may bring a more important perspective to many issues than a wealthy Texas Hispanic. Ten blacks with 1500 SAT scores and 3.85 GPAs may do more to erase stereotypes than 100 blacks with 950 SATs and 2.8 GPAs who were admitted over more-qualified whites in order to represent the views and culture of their race.

Court Action, Liberal Reaction

Michigan’s desperate attempt to create a constitutional doctrine out of one eccentric decision by an otherwise sensible Supreme Court justice (Powell) runs counter to at least a dozen years of Court precedents. True, no case directly involving race preferences in university admissions has reached the Supreme Court since Bakke. But in cases involving state and federal contracting and racial gerrymandering of congressional districts, several members of the current Court have taken a limiting view of what government may do to tamper with the equal protection clause, even for the most laudable purposes. In the Croson case, involving state preferences for minority contractors, the Court warned that unless racial classifications "are strictly reserved for remedial settings, they may in fact promote notions of racial inferiority and lead to a politics of racial hostility." Justice O’Connor has noted: "Modern equal protection has recognized only one [compelling state] interest: remedying the effects of racial discrimination."

The probability is thus very high that by June 2003 the Supreme Court will erase the misapplied legacy of Bakke by holding that there is no compelling state interest in diversity sufficient to justify racial and ethnic preferences in higher education. This will be an enormous victory for those who have cherished and defended the equal protection clause as much when it applies to the daughter of a Vietnamese "boat person" as when it protected the black son of a Mississippi sharecropper.

But for those concerned as well about the quality of higher education, the battle will be far from over. Part of the response may include a healthy search for race-neutral ways to ensure a continued, substantial presence of minorities on campus. This may include greater recruitment efforts, more emphasis on college preparatory programs, and more attention to post–high school "academies" designed to prepare youngsters for the rigors of college. But one can also anticipate cruder efforts to keep the numbers high, such as guaranteed admission to state universities for all those graduating in the top 10 or 20 percent of their high school class regardless of their preparation for college. Nor will the assault on such standardized tests as the SAT, ACT, MCAT, LSAT, and GRE abate. Never mind that each has proven highly probative of future academic success or that several traditionally overpredict minority performance or that most have played important past roles in opening doors to academically qualified members of the underprivileged classes.

Just as the defenders of segregation spent 15 years after Brown v. Board of Education concocting "freedom of choice" plans and other ruses to defy the central holding of the case, defenders of race preferences in education will likely regard an adverse Supreme Court decision as a call to arms rather than a death knell for their cause.