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If universities are left to consider race, so long as they don't weigh it "too much," we know now from painful experience that they will adopt quotas, just as UM did.

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Justices Ponder Legality Of Admissions Quotas

If universities are left to consider race, so long as they don’t weigh it “too much,” we know now from painful experience that they will adopt quotas, just as UM did.

On April 1, the Supreme Court heard oral argument in two cases, challenging the University of Michigan’s (UM) use of racial and ethnic admission preferences for its undergraduates and law students, respectively.

Some of the general media coverage suggested that the session did not go well for the lawyers opposing UM’s discriminatory policies, but actually there were few surprises in the questions asked by the justices, a clear majority of whom indicated skepticism about UM’s preferences, which have amounted to ill-disguised quotas.

It was, in particular, no shock when Justice Ruth Bader Ginsburg brought up an amicus (friend of the court) brief supporting UM that was filed on behalf of a some ex-military officers.

This brief, which argued that a racially diverse officer corps is important for morale reasons, had been celebrated in the media, including a lead editorial in the New York Times the day of the arguments. But the brief is irrelevant and unpersuasive.

Even if the justices bought the preference argument in the military context, it would have little to do with UM’s justifications for its policy.

Unlike UM, the military doesn’t stress a desire for viewpoint diversity or to demonstrate that not all black people think alike, and of course UM has no national security justification for its policies. The military brief relies heavily on Vietnam-era experiences, when Jim Crow was still being dismantled; it’s not at all clear that there would be significant disparities or morale problems now without preferences.

The Center for Equal Opportunity’s studies of Annapolis and West Point (on our website) found discrimination there, but much, much less than at UM (for example, no statistically significant evidence of discrimination in favor of Latinos at West Point at all).

In any event, not everyone and probably not even a majority in the military agrees with the amicus brief-notably the Commander in Chief, who filed a brief opposing UM’s policies.

Diversity Mandates

As the president’s lawyer, Theodore Olson, said at the arguments in response to Justice Stevens, "[W]e do not accept the proposition that black soldiers will only fight for black officers . . . ." It is simply not plausible that the selection of personnel on the basis of race will improve effectiveness and morale-it will jeopardize them.

There were also some allusions at the oral argument by the liberal justices to amicus briefs filed by many corporations. But the reliability of these briefs is suspect, too. "Celebrating diversity" is good public relations and an obvious way to deter boycotts and lawsuits by the likes of Jesse Jackson and Johnnie Cochran.

Companies have their own human-resource bureaucrats these days, who make a good living by insisting that hiring and promoting be done with an eye on the racial and ethnic (and gender) bottom line.

And the Court’s own decisions haven’t helped, since they and federal civil-rights bureaucrats have told businesses that they can get into trouble if they don’t get their numbers right, and that the judges will look the other way so long as the company’s discrimination is politically correct. A bad decision in the UM cases will make matters worse, completing a vicious circle.

Many amicus briefs were, in addition, filed by other universities, but this is no more surprising than the Gambino family filing an amicus brief when the Corleone family is sued: Most selective universities are breaking the law, and they know it, and they know that if UM loses they will be in trouble, too. And yet, surprisingly, it is not the case that the academy generally believes that racial preferences are desirable.

Professors surveyed by mail in 1998 at the University of Delaware opposed preferences by a margin of 69% to 28%.

Three years ago, the Connecticut Association of Scholars commissioned the Center for Survey Research and Analysis at the University of Connecticut to conduct a faculty survey at public institutions of higher education in that state.

A random sample of full-time tenured and tenure-track faculty were interviewed by phone and asked, "Do you feel that [your institution] should or should not grant preference to one applicant over another for student admission on the basis of race, sex, or ethnicity?"

At Connecticut State University, 23% said it should and 58% said it should not; at the University of Connecticut, 35% said it should and 47% said it should not; and at Connecticut Community College, 9% said it should and 73% said it should not. (The percentage of professors at each school saying they weren’t sure or it depends was 18.)

When the same question was asked of professors in a 1996 national survey by the Roper Center for Opinion Research, 56% opposed preferences and only 32% favored them. While the gap was narrower among liberal arts professors and wider among business, science, and engineering professors, majorities in every field opposed preferences.

And these numbers obtain even though the same poll found that twice as many faculty members versus the general public described themselves as "liberal" and only half as many as the general public described themselves as "conservative."

Much of this and related information is collected in a report on Race and Higher Education written by Thomas E. Wood and Malcolm J. Sherman and published by the National Association of Scholars.

Sleight-of-hand Logic

These results are not really surprising. The notion that a quality education requires a student body with a predetermined racial and ethnic mix-the "diversity" argument that is central to UM’s case-is simply not plausible, and this is demonstrated by the fact that the rationale for this proposition keeps changing.

Originally the claim was that African Americans, for instance, had a particular set of "ideas and mores" to which other students should be exposed. But this argument-that is, embracing stereotypes-was unpalatable, so it was then asserted, instead, that diversity was essential to teach toleration.

The trouble with this argument-besides the fact that it is inherently hypocritical for universities to champion tolerance while themselves engaging in discrimination-is that it is difficult to break the stereotype of black intellectual inferiority when you are, at the same time, systematically creating a student body where the black students are academically inferior to the white students.

And so now the claim is that diversity is needed to show that black students don’t all think alike. But this is, in some ways, the weakest justification of all: There is no one in 21st century America-certainly not anyone who owns a television set-who doesn’t already know this, and how can teaching this narrow and obvious lesson justify something as divisive and unfair as institutionalized racial discrimination?

"Blacks don’t all think alike"-can’t those five words be effectively communicated is some way that doesn’t involve admission quotas?

It will be very disappointing if a majority of the Court narrowly rules against UM’s quotas but fails to reject outright the diversity rationale. Not doing so would leave unresolved a division among the lower courts, some of which have accepted it and some of which haven’t.

It would also leave unclear the status of the injunction the federal trial judge issued in the law school case, enjoining any consideration of race. But the major problem would be practical: If universities are left to consider race, so long as they don’t weigh it "too much," we know now from painful experience that they will adopt quotas, just as UM did.

Written By

Mr. Clegg is general counsel of the Center for Equal Opportunity.

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