The Compromise of Color Blind
By Michael S. Greve
(The following will appear in an upcoming issue of the Chronicle of Higher Education )
Two recent, conflicting district court rulings concerning race-based admission preferences at the prestigious University of Michigan and its law school highlight momentous legal questions that require unflinching yes-or-no answers—whether or not the Fourteenth Amendment demands official neutrality in matters of race; and whether Justice Powell’s lone opinion in University of California v. Bakke, the purported basis of "diversity"-based preference policies, was then or is now the law of the land. Sooner or later, the U.S. Supreme Court will have to decide these questions, either in the Michigan cases or in one of similar pending cases against state universities in Washington, Texas, and Georgia.
Past decisions in civil rights cases suggest that the Supreme Court, in its current composition, will be tempted to paper over the legal and real-world problems with a compromise. The happier news is that one of the seemingly stark legal choices, official colorblindness, will be that compromise formula. If that result comes to pass, we will owe it not only to the merry band of constitutional warriors at the Center for Individual Rights (my own previous employer and the plaintiffs’ law firm in the two Michigan cases and in the Texas and Washington) but also, and in no small measure, to the education establishment’s intransigence.
A much-noted decision this past month invalidated the University of Michigan Law School’s practice of enrolling a "critical mass" of minority students by means of admission preferences. Racial diversity, U.S. District Judge Bernard Friedman determined, is not a compelling government interest that would warrant race-based decisions. Even if it were, moreover, the Law School’s racial preferences were not narrowly tailored to the diversity objective. For instance, the school had never explored race-neutral means of achieving the objective.
The decision and opinion in Grutter v. Bollinger directly contradict a December 2000 ruling by a different district judge, which sustained substantially more expansive and systematic racial preference policies used by the University of Michigan’s undergraduate College of Literature, Sciences and Arts. Both decisions have been appealed to the Sixth Circuit Court of Appeals, which will likely consolidate them into a single case. A lay observer would guess that only one of the two district court decisions can be right. That guess turns out to be correct. The stark constitutional choice, however, obscures a more nuanced legal and political subtext.
Throughout its history since Brown v. Board, civil rights law and policy have reflected a desire to reconcile a public commitment to constitutional colorblindness with efforts to promote the social advancement of blacks. The non-discrimination command of the 1964 Civil Rights Act implicitly assumed that those two commitments were convergent, if not entirely congruent. Non-discrimination, however, soon came to be viewed as insufficient to overcome massive political resistance and the legacy of racism and segregation, and the neutrality norm was subordinated to the need for social promotion, under the heading of "affirmative action." That ambiguous term sparked a protracted, acrimonious fight over how far nominally "remedial" preferences could extend without undermining a credible pretense to non-discrimination.
When the history of segregation and the policy of "massive resistance" receded into the past, thus rendering ostensibly remedial deviations from the non-discrimination norm increasingly questionable, Justice Powell’s Bakke opinion supplied a new compromise formula: in the interest of "diversity," universities may consider race as one "plus" factor among others, though not as a "determining" factor or as a "quota." That official holding, scholars and advocates on all sides agree, is incoherent, since one can always achieve a pre-determined racial balance—that is, a quota—by administering a sufficiently large "plus factor." The real, albeit unofficial, holding of the Powell opinion was that quotas are okay, so long as universities deny their existence.
That formula worked for almost two decades. It depended, however, on a public perception, and thus an official pretense, that racial preferences were relatively benign because they were limited—akin to the preferences colleges award to, say oboe players or North Dakotans. In other words, the Bakke formula depended on secrecy about the true scope of racial preferences. It ceased to be viable when Hopwood v. State of Texas, filed in 1992 and decided, in a pathbreaking opinion by the Fifth Circuit Court of Appeals, in 1996, produced public, incontrovertible evidence of "plus factors" that were quotas in all but name. Confronted with that evidence and the incoherence of the Powell opinion, the Hopwood appeals court ruled that "diversity" does not warrant any kind of racial preference or "plus factor."
The scandal of Hopwood, and the reason for the acrimonious debate it engendered, was that it threatened to force universities, and the country, on one of the horns of the perennial dilemma between non-discrimination and black advancement. Race-blind admissions, the education establishment shrilly proclaimed in court and in public, would mean "lily-white" elite institutions. Journalists (such as The New Republic’s Jeff Rosen) and academics who should have known much better (such as Harvard’s Nathan Glazer) echoed this jeremiad.
The dire predictions have since proven vastly overblown. They were based almost entirely on a simple projection of then-existing, test-score-based admission practices onto a race-neutral world. But of course, no law and no plaintiff compels universities to rely exclusively on applicants’ test scores and GPAs. From the admission of the top ten or twenty percent of students from every high school, to an increased emphasis on non-numerical admission criteria, to an individualized file review that makes it impossible to trace racial discrimination, university administrators have countless means of enrolling a "critical mass" of minority students under (officially) race-neutral laws. Texas has learned to live with Hopwood. California universities have learned to live with Proposition 209, the 1998 referendum prohibiting the racial preferences and discrimination in California’s public institutions.
Why, then, does the education establishment continue to fight official colorblindness? Why is the University of Michigan spending a fortune on the defense of practices that have raised eyebrows even at the New York Times and 60 Minutes? Why is the University of Texas Law School still pursuing appeals in the long-decided Hopwood case? The universities’ scorched-earth defense seems increasingly ideological, and divorced from the proffered real-world concerns.
It is true that race-neutral laws might produce a loss of a few minority students at a few elite institutions, and that the recruitment of a suitably race-diverse student body becomes somewhat more expensive and cumbersome for virtually all competitive institutions. Guaranteed outcomes and administrative convenience, however, are not the point of constitutional norms, and even university administrators have refrained from contesting the point. Similarly, some diversity-preserving measures may produce incoming student classes with somewhat lower average test scores than the allocation of a pre-determined number of seats to he highest-scoring students within each racial group. That is a small price to pay, though, for an allegedly "compelling" interest in racial diversity. There is something absurd about the educracy’s contention that lower average test scores of the Harvard student body at large would destroy the institution’s elite status and character, whereas the admission of minority students with lower scores is essential to its functioning.
At any rate, university administrators worry, not about a marginal downward shift in average admission scores per se but about the standing and ranking of their institution relative to comparable, competing institutions. The University of Texas Law School explicitly—and unsuccessfully--urged the Fifth Circuit to re-visit its 1996 Hopwood decision in light of the competitive disadvantages attendant to subjecting UT, but not rival schools outside the Fifth Circuit, to colorblind rules. That concern should fade, however, once all elite institutions are compelled to observe the same rules. Theoretically, some university could sacrifice racial diversity to higher test score averages in an effort to improve its competitiveness ranking vis-à-vis its rivals. But that opportunity also exists under current law, and no first-rate institution has made use of it. Harvard, Yale, or even the University of Chicago would not hire a janitor, let alone a provost or president, who might be suspected of contemplating any such move. Deviation from the diversity orthodoxy ends an educator’s career. That alone suffices to sustain a cartel of diversity-maximizing institutions.
"Do not give an inch" might be a plausible strategy for university defendants if that concession were to embolden litigants and judges to take the next, bigger step. There is no possible "next step," however, beyond compelling a public commitment to official colorblindness. The notion that the eradication of manifest racial preferences—and the acceptance of official colorblindness—might produce a wave of litigants and lawsuits to challenge more subtle, facially race-neutral diversity policies is absurd. Complex and hugely expensive to begin with, reverse discrimination lawsuits become positively forbidding when the preferences are difficult to detect and still more difficult to prove.
The only legal rule that would compel actual race-neutral admission policies is a " disparate impact" theory. Such a rule would impose on defendant-universities an affirmative obligation to prove that the enrollment of an unexpectedly large contingent of minority students, relative to the qualified applicant pool (as measured by test scores and GPAs), was produced by non-discriminatory means. No conservative advocate, academic, or agitator has proposed such a rule. Having campaigned for three decades for official colorblindness and against statistical measures of non-discrimination, conservatives could not now advocate a "reverse" disparate impact rule even if they were of a mind to do so. No court in the country, moreover, would seriously consider such a theory.
Put differently, race-neutral norms will not guarantee race-blind practices. In the 1960s and 1970s, that recognition, coupled with the desire to foster minority advancement, prompted the courts, the Congress, and federal civil rights agencies to adopt statistical—and preferential—measures of non-discrimination. Precisely the same consideration now pushes towards official colorblindness. The Supreme Court will accept deviations from that legal baseline if they are shown to be an absolute social necessity. It will not tolerate them as an ideological point or hobby horse.
An ideological point, however, is what universities’ defense of race-based preferences has come down to. Educators know, and we know, and courts know, that racial diversity is achievable under race-neutral norms. University administrators, however, do not simply want to "help blacks." Their self-esteem and respect among peers depend on being seen to be doing something special, out-of-the-ordinary for minority constituencies. That perception, in turn, depends on administering explicit racial preferences. Accommodating the educator’s perceived need, though, would require the Supreme Court endorsement of a "diversity" regime of open-ended, permanent racial preferences. That, the Court is not going to do. It will instead embrace the sensible, cost-free compromise: neutrality in law, diversity in fact.
In a strange way, the restoration of official colorblindness as a constitutional norm has always depended on the education establishment’s overreach and misguided noblesse oblige. The Fifth Circuit’s 1996 Hopwood decision, the University of Texas Law School obtained a district court decision sustaining and, indeed, commending the school’s use of racial preferences, albeit requiring a few policy changes school officials themselves described ed as "cosmetic." The school could have settled the case then and there by making those changes, admitting Cheryl Hopwood and her co-plaintiffs, and paying modest attorneys’ fees. Instead, the school chose to fight—and bought itself a precedent on which the campaign against race-based preferences has rested ever since. More such strategic genius is required to push one of the pending cases into the Supreme Court.
The University of Michigan, for one, seems prepared to oblige. Its leaders and lawyers deserve support and gratitude—not for their cause, but for their obstinacy.