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Does Sandra Day O'Connor feel guilty?

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Will the Court Finally End Racial Preferences?

Does Sandra Day O’Connor feel guilty?

by Edward Blum and Roger Clegg

This week marks the 50th anniversary of Brown v. Board of Education, the 1954 landmark decision in which the Supreme Court struck down race-based student assignments in public schools. Ironically, next month will then mark the one-year anniversary of Grutter v. Bollinger, in which the Court upheld the use of race-based student admissions in universities.

It is not surprising that, when Supreme Court Justice Sandra Day O’Connor blessed the use of racial preferences to achieve “diversity” at the University of Michigan law school this past June, she must have felt guilty about playing fast and loose with the Constitution’s ban on discrimination. Why else then did she feel compelled to add to her opinion in this case that in 25 years she “expects” these preferences should “no longer be necessary” to achieve student-body diversity?

Sure, O’Connor, like everyone else, hopes that the current “gap” in standardized test scores between blacks and Latinos, on the one hand, and Asians and whites, on the other, will shrink, and eventually close.

But based on the latest available (2003) SAT scores for all racial and ethnic groups of college freshmen, that gap may never close. Ever. And she’ll bear a large part of the blame.

That’s the depressing conclusion one draws from the trends unless test scores start dramatically to accelerate upward for minorities, or accelerate downward for whites and Asians, or both.

Here are the facts:

  • In 1993, African-Americans’ average combined verbal and math SAT was 850, while today it is 857.
  • For whites over the same time-frame, the increase was from 1037 to 1063.
  • For Asians, it was from 1042 to 1083.
  • Mexican-American scores during this period headed in the wrong direction, declining from 910 to 905 (some experts have noted that the extraordinarily high rates of immigration may have contributed to this phenomenon).

Even if the improvement rate remains the same for blacks during the next 25 years–and white scores for some reason suddenly stop improving–average black SAT performance in 2028 will still be 162 points below the average performance of white students today. In fact, even if white students show no improvement in scores at all during the next 100 years, and blacks continue to improve at current rates, the gap will still be well over 100 points even then.

Of course, these trends in the SAT gaps have not been lost on the defenders of racial preferences, and already many are expressing concern about O’Connor’s 2028 “cutoff” date.

For instance, Maureen Mahoney, the former deputy U.S. solicitor general and
Justice William Rehnquist clerk who argued on behalf of University of Michigan preference program, said after the opinion was announced that “I don’t think it was given a fixed end date, but I think the court hopes and expects the program will end in 25 years.” Note her use of the word “hopes.”

Mahoney’s opinion was echoed in an op-ed written shortly after the Court’s ruling by University of Vermont President Daniel M. Fogel, who voiced his apprehension about ending affirmative action by 2028 when he wrote: “Twenty-five years! Think what a desperately short fuse that is.”

Meeting O’Connor’s 25-year cutoff date for race-based affirmative action hinges in large part on addressing the woeful state of minority education in this country today. And sadly this disastrous minority performance is not manifested just by low SAT scores: Every measure of academic achievement from reading scores of first graders to proficiency tests for police captains shows African Americans and, to a lesser extent, Latinos usually scoring well below whites and Asians.

Now, logically the reasons for this gap can be either external (say, in particular, the education system) or internal (say, in particular, African American educational attitudes). The tragic irony is that Justice O’Connor’s opinion makes it less probable that either will be addressed seriously.

Politicians are less likely to address failures in public education for so long as racial preferences allow them to sweep the problem under the rug. That was the lesson of California’s Proposition 209 initiative: K-12 educational reform was much easier after preferences were banned.

These academic and proficiency test gaps are also likely to continue to remain stubbornly wide simply because affirmative action preferences remove much of an individual’s incentive for high achievement. After all, as Professor John McWhorter points out, why should an African-American high school student bust a gut studying three extra hours every night to get an A in a difficult course, when he knows a C+ will get him the same offer from a competitive college?

Justice O’Connor thought she was helping academically underachieving blacks and Hispanics gain a rightful place in the leadership of our nation by allowing an applicant’s race to be used in university admission, but in fact she may have helped guarantee just the opposite.

As long as African-Americans know they can rely on preferences to help them into school, they won’t commit the sweat-equity needed to make them truly excel on their own; as long as politicians can use preferences to paper over the real problems in K-12 education, they won’t act. The recent SAT scores are just one of the indicators that proves this point.

We have only another 289 months to go to see if we’re right.

Mr. Blum is a senior fellow and Mr. Clegg is general counsel at the Center for Equal Opportunity (www.ceousa.org).

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