Commentary

Court Evades Duty on Affirmative Action

By Marie Gryphon
This article appeared on FOXNews.com on July 2, 2003.

After 25 years of guesswork on the part of state universities across the country, the Supreme Court last week released a pair of decisions on affirmative action at the University of Michigan. As a matter of public policy and accountability, the decisions may represent the worst of all worlds. The Court has adopted a “don’t ask, don’t tell” rule of constitutional analysis.

In what Justice Scalia dubbed a “split double-header,” the Court struck down Michigan’s undergraduate admissions process, which dared to quantify the role race plays in admissions, while upholding the Michigan law school’s more freeform approach.

The Michigan law school seeks to enroll a “critical mass” of African-American, Hispanic, and American Indian students each year to obtain the educational benefits of a diverse student body. But law school officials are careful not to reveal what they mean by a critical mass. They testified only that a critical mass means “meaningful numbers,” but that there is “no number, or range of numbers or percentages that constitute critical mass.”

But if a critical mass is indefinable when they have it, law school officials can instantly tell when they don’t. The law school’s expert testified that if race were not considered, minority acceptances to the law school would fall by over two-thirds. The resulting minority enrollment of 4 percent, law school officials are sure, is not critical mass. How do they know? Trust us, they seem to suggest, we know it when we see it.

Also muddying the waters is the law school’s refusal to separate its consideration of race from its consideration of other so-called “soft factors,” such as talents, hardships, “perspectives,” the fetching nature of an admissions essay, or what the admissions officer had for breakfast that morning. No numbers, weights, or even clear guidelines appear to limit the discretion of the law school admissions officers with respect to these factors, although the testimony of the law school’s expert indicates that race must weigh heavily in their minds.

This finger in the wind, navigation by stars, turn-three-times-and-spit approach may actually be a fairly good way to create a law school class. Perhaps this is a task better approached as modern art than social science.

But a public law school is not merely making a pedagogical decision. Michigan law school officials are redistributing millions of dollars in taxpayer subsidies each year to a chosen few. They are doing so on bases that would strike us as capricious in any other context, and they are making these decisions based to a substantial extent on race.

And the Court has not only allowed public universities to be hopelessly vague about their use of race to award public subsidies. The Court has mandated it. The more thoroughly inscrutable an admissions policy is, the more likely it now is to be constitutional.

The Court’s Michigan decisions are ironic against the backdrop of the “accountability” rhetoric that is now central to secondary education policy. On one hand, we want high schools to “show their work,” and be accountable to taxpayers for their actions. On the other hand, universities may take public money while offering taxpayers little idea about how their beneficiaries are chosen.

And this mysterious, unaccountable choosing of public subsidy recipients is likely to become far more common as a result of the Michigan decisions. Michigan officials have already indicated that they will scrap their undergraduate admissions guidelines — designed to “promote consistency in the review of the large number of applications” — in favor of the law school’s whimsical approach. Other state universities across the country will surely do the same.

They will do so because the Supreme Court flinched. Racial preferences are an ugly business. But they exist at places like the Michigan law school in a way that can be separated from other factors if the parties insist. The school’s own expert reverse-engineered the admissions data to determine that if race alone were eliminated from the process in the year 2000, 10.5 percent of decisions would have been different.

But the Court instead took a see no evil, hear no evil, speak no evil approach. We will uphold racial preferences, the Court has effectively said, if we can’t tell exactly what you are doing. Lawyers who for years have advised law school admissions officers across the country not to write anything down about their process, lest they produce smoking gun documents, have been vindicated.

The Court held that racial preferences must be “non-mechanical.” The unfortunate result is that a race-influenced method of distributing public funds is now “unreviewable.” Race may influence public decisions without accountability.

Twenty-five years ago, Justice Powell wrote that when government decisions “touch upon an individual’s race or ethnic background, he is entitled to a judicial determination that the burden he is asked to bear … is precisely tailored to serve a compelling governmental interest.” But there is nothing precise about the Michigan law school admissions policy. Worse, that’s exactly why the Court upheld it.

Marie Gryphon, a former practicing attorney, is an education policy analyst at the Cato Institute.