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Last month, The New York Times reported that the U.S. Justice Department was preparing to begin “investigating and suing universities over affirmative action admissions policies deemed to discriminate against white applicants.” It turned out that what the Justice Department was really up to was investigating admissions discrimination against Asian-Americans at one university, named Harvard.

No matter. The Times story was enough to reignite the ever-smoldering debate over whether our universities should weigh, in a politically correct manner, of course, skin color and national origin in deciding who gets in. And the Times was right that the willingness of the Trump administration to consider that such discrimination might be wrong was newsworthy -- both because it upsets our university bien-pensants and because it signaled a possible break with the Obama administration’s aggressive support for race-based admissions.

The Center for Equal Opportunity, where I work, has actively opposed racial and ethnic preferences in university admissions since it began in the mid-1990s (I joined it in 1997), and I’ve worked against them even longer than that, during my time at the Justice Department in the Reagan and Bush 41 administrations. The arguments have changed a little, but only a little. (The most important changes are the increasing documentation of the “mismatch” effect and the increasing awareness that preferences now disadvantage some minority groups, notably Asian-Americans, in addition to whites.) Let’s review them.

To begin with, it has to be acknowledged that we are arguing about treating people differently -- some better, others worse -- because of skin color or what country someone’s ancestors came from. The proponents of such discrimination naturally resist having the issue framed that way, but it’s an undeniable fact. The fact that (perhaps) hard quotas are not used, or that other groups -- like children of alumni or athletes -- also receive preferences, or that factors other than race are also considered doesn’t change this.

If you consider race, it must be because sometimes it will tip the scale. (Otherwise, why consider it at all?) And the fact is that race is typically weighed quite heavily -- not as a mere tiebreaker, as innumerable studies by my organization and researchers from both sides of the aisle have shown -- so the quota/nonquota distinction is one without much of a practical difference. And the legal, moral and historical ramifications of treating people differently based on race are different from doing so on the basis of three-point jump shots.

Questionable Justifications

Well, if you are going to engage in racial discrimination, you had better have a good reason -- the U.S. Supreme Court and civil morality are agreed on this -- so what do its proponents adduce?

There are three candidates. Occasionally a prophylactic justification is claimed for racial preferences: that the only way to ensure that group X is not discriminated against is to insist on quotas or some other preference in their favor. One can imagine circumstances where this might be true -- the Supreme Court imposed hiring quotas on recalcitrant employers on this basis back in the day -- but university admissions in 2017 is not one of them. Those offices have been cheerfully and openly discriminating in favor of blacks and Latinos for some time now by weighing race and ethnicity to achieve diversity. Are we really to believe that if they weren’t allowed to discriminate in their favor, they would start discriminating against them?

The other two candidates are a broad remedial one, namely addressing institutional/historical/societal discrimination, and the claim that there are compelling educational benefits in a diverse student body and that the right kind of such diversity can be achieved only via racial and ethnic discrimination in admissions. The problem with the remedial one is that the Supreme Court has rejected it, so that legally it is a nonstarter -- and thus no college or university relies on it. The problem with the educational benefits argument is that nobody really believes it.

In saying that the broad remedial justification is a nonstarter legally, I don’t want to leave the impression that it makes any sense logically, either. We are talking, after all, about students born not into slavery or Jim Crow, but in 2000. We are talking about giving preferences to Latinos over Asian-Americans, which is supposed to remedy … what, exactly?

Sure, there are African-Americans who can claim disadvantage and may be able to trace it to historical discrimination of some sort, but the trouble is that the overwhelming majority of such students receiving preferences are really not socially and economically disadvantaged. (The classic defense of racial admission preferences, The Shape of the River by Derek Bok and William G. Bowen, acknowledged that only 14 percent of black students admitted to the selective schools that the authors studied came from backgrounds of lower socioeconomic status, and the rest came from upper- or middle-SES backgrounds.) If colleges and universities want to help those who are disadvantaged, they can do so on the basis of, well, disadvantage rather than using skin color as a proxy. Not all blacks and Latinos are disadvantaged, plus I have it on good authority that there exist in this country some whites and Asian-Americans who have parents who are not Ivy League alumni, and that some of them are not even rich.

In any event, universities are left to lean on the weak reed of the “diversity” justification, which boils down to this: university admission officials can with great confidence, by considering skin color and national origin, identify students who will, in random discussions inside and outside the classroom, provide white students and Asian-American students with insights that are “compelling” in their “educational benefit.” And, what’s more, those insights could not be attained in any way except (a) by these random discussions and (b) by university officials using racial discrimination in the admissions process to ensure that such students will be admitted to make them.

As I said, it’s hard to swallow that anyone really believes this. Whenever I debate this issue, within a few minutes we’re talking instead about slavery. And it’s always useful to put the shoe on the other foot in these debates: Suppose someone were to try to justify discriminating against blacks and Latinos based on this sort of social science -- would it be viewed as plausible, let alone “compelling”?

(I will add, parenthetically, that sometimes you hear colleges and universities claim that they want a student body that reflects the population of their state. There is no legal pedigree for setting such quotas, which sound like what Justice Lewis F. Powell Jr. had in mind when he rejected such a rationale in Bakke in 1978 as “discrimination for its own sake” that is flatly forbidden by the Constitution. Such an aim would manifestly require discrimination against not only Asian-Americans but against any other group that is “overrepresented” in higher education -- Jews and now also Asian-Americans, high school graduates, nonfelons, children, senior citizens and so forth.)

Considering the Costs

But let’s suppose that you are not completely persuaded. That is, let’s suppose that you think, while the justifications for the use of racial preferences are not rock solid, there is at least something to them. Does that mean that we should continue to use them?

The answer is no, and the reason is the obvious one that, when one does a cost-benefit analysis, one has to consider not only possible benefits but also possible costs. So here’s my usual list of the costs of using racial preferences in university admissions.

  • It is personally unfair, passes over better qualified students and sets a disturbing legal, political and moral precedent in allowing racial discrimination.
  • It creates resentment and is otherwise and inevitably divisive.
  • It stigmatizes the so-called beneficiaries in the eyes of their classmates, teachers and themselves, as well as future employers, clients and patients.
  • It mismatches African-Americans and Latinos with institutions, setting them up for failure, so that not only are those discriminated against hurt but also those supposedly benefited.
  • It fosters a victim mind-set, removes the incentive for academic excellence and encourages separatism.
  • It compromises the academic mission of the university and lowers the overall academic quality of the student body.
  • It creates pressure to discriminate in grading and graduation.
  • It breeds hypocrisy within the college and encourages a scofflaw attitude among administrators.
  • It papers over the real social problem of why so many African-Americans and Latinos are academically uncompetitive.
  • It gets states and colleges involved in unsavory activities like deciding which racial and ethnic minorities will be favored and which ones not, and how much blood is needed to establish group membership -- an untenable legal regime as America becomes an increasingly multiracial and multiethnic society, and as individual Americans are themselves more and more likely to be multiracial and multiethnic.

To elaborate on just one point, because of its current salience: telling African-Americans, in particular, that less is expected of them and, indeed, then requiring less of them is a sure way to reinforce racial stereotypes and to encourage identity politics and the self-segregation of a group that the selection process has guaranteed will be mismatched and marginalized. The unhappy consequences of this approach on a campus are, alas, all too visible. It is increasingly clear that racial preferences help no one -- and hurt everyone.

And I will add that, not only is the list of costs longer than the list of benefits, but also the costs are heavy and undeniable, while the benefits are marginal and dubious. And since renowned public higher education systems in, for example, California and Michigan are no longer allowed to use preferences and yet seem to be able to continue educating their students very well, it is increasingly difficult to assert that the use of preferences is essential at a top-notch institution.

Narrow Tailoring and Transparency

So now let’s return to where we began, with the Trump administration. One hopes that, while the administration was at pains to point out that the current initiative involves only anti-Asian-American discrimination at one university, it will be willing as well to investigate other institutions where there is evidence of illegal racial and ethnic discrimination against Asian-Americans and whites, just as it would if there were evidence of illegal discrimination against African-Americans and Latinos, or Native Americans or Arab Americans.

The Supreme Court, after all, has emphasized repeatedly that even politically correct discrimination will be strictly scrutinized, and has set out, in particular, various “narrow tailoring” requirements that must be met. The Trump administration should make sure that those constraints are followed. There is no reason to think that colleges and universities are being very conscientious about following those rules; for example,  the amicus brief we filed with Pacific Legal Foundation and others in Fisher II documents our FOIA efforts that showed the opposite.

Indeed, the Trump administration ought to take a proactive approach, and its Department of Education could and should require colleges and universities that receive federal money to report (a) whether they consider race and ethnicity in admissions and, if so, (b) the steps each has taken to ensure that the resulting discrimination is in fact narrowly tailored to a compelling interest, in the way the Supreme Court has demanded.

This is a simple transparency requirement, and it imposes no burden on colleges and universities to do anything except report what they should be doing anyway, by law. Some favor racial and ethnic discrimination in admissions -- fine, but who can defend secret and illegal racial discrimination in admissions in higher education institutions that receive the taxpayers’ money? If the Trump administration won’t enforce such a requirement, then Congress should legislate it. The resulting data would be available to both sides of the aisle as we continue to debate this important issue.

Ultimately, I would ask those who defend the use of racial and ethnic admission preferences to give some thought to whether they would require them indefinitely and whether such a requirement is really consistent with good race relations in the country America is becoming.

I am no fan of the president, although he has made some fine appointments in this area, and am under no illusions about him. I also abhor identity politics and racial politics of all kinds, politically correct and incorrect alike. I don’t like the alt-right, and I don’t like antifa and Black Lives Matter.

I suspect that the reason the Times jumped to the conclusion it did was its belief -- and the belief of the career civil-rights lawyers who leaked the relevant memo to it -- that the Trump administration saw some race card to be played in challenging anti-white discrimination.

But if that prospect is offensive, in the long run isn’t the way forward to get the government, and our institutions, out of the business of all racial discrimination? How long can we tenably tell people that, while others may not be discriminated against, it is fine for them to be? (And again, it is not just whites who are now told this but also minorities like Asian-Americans.)

In writing about Charlottesville, Va., a few weeks ago, I suggested a deal: take down the statue there of Robert E. Lee, in exchange for an abolition of racial preferences at the University of Virginia. My tongue was only partly in cheek. The larger deal is to embrace e pluribus unum and treat all Americans without regard to skin color or what country their ancestors came from. Starting now.

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