On April 1st, the Supreme Court will hear oral arguments in this term’s most contentious case. The Court must decide whether the University of Michigan’s affirmative action programs violate the Constitution. While the Court will decide the Michigan case on its legal merits, the suit has also brought some overdue transparency to the public debate about affirmative action.
Even public figures lose sight of truths about affirmative action in the self‐generated haze of language intended to confuse. This thick rhetorical fluff is inspired by polling, and the need to capture the moderate middle of the electorate. “Affirmative action” polls pretty well, but “racial preferences” do not. “Quotas” poll worst of all. Are there meaningful differences between these things, and if so what are they? Politicians seeking to remain on the right side of their favorite constituencies have little interest in clarifying their terms.
The President has historically sought a moderate tone on this issue, balancing the demands of his base against a favorite political project of his – making the Republican Party competitive among minority voters. In line with this strategy, his administration has decided to file a brief in the Michigan case opposing the university’s admissions practices on the relatively narrow ground that they are “quotas.”
While probably politically motivated, the administration’s narrow position in this case has revealed an important truth about affirmative action as it is practiced today. Most programs, regardless of how they are structured, are intended to produce an entering class with a specific racial composition. Most programs are thus quota‐like, whether disguised as preferences or hidden behind the Japanese Shoji screen of individual consideration.
Michigan’s undergraduate program, for example, looks like a preference. The Michigan admissions formula no longer sets aside a certain number of slots for “underrepresented minorities,” but instead adds 20 points to the admissions profile of each African‐American, Hispanic or Native American applicant.
Nonetheless, the Michigan program functions like a quota if the size of its preference – 20 points rather than 5 or 10 – is designed to result in a freshman class with a certain percentage of minority students. Proponents of preferences tend to refer to this percentage vaguely as a “critical mass.”
The program’s defenders argue that the bonus points are awarded in order to ensure a diverse freshman class, and emphasize that points are also awarded for other diversity factors, such as an unusual home state or an interesting essay. But coming from an unusual geographic location is worth only six points in the Michigan system, and a great story garners only three points.
On an individual basis, it makes little sense to say that a Vietnamese violinist adds less than half the interest to an incoming class than does a member of a preferred minority group. Rather, Michigan must award 20 points to preferred groups in order to have them present on campus in percentages desired by the university. And a 20‐point advantage is huge, equal to the difference between a C average and a B average in the Michigan system.
This is where the distinction between preferences and quotas falls away. A lower court ruled for the university on this issue despite this questionable structure, largely because courts traditionally defer to states’ plausible explanations for their actions. Regardless of how the Supreme Court rules, the public discussion surrounding how the Michigan point system works in practice should generate a more thoughtful debate about the results‐driven nature of preference programs.
Michigan’s law school admissions program takes a different approach to affirmative action. Rather than employing a point system, Michigan’s law school uses what has been called the “Harvard system,” supposedly taking race into account as a part of an individualized analysis of each applicant’s qualifications.
At first glance, this system looks nothing like a quota, but daily reports provided to the dean and admissions director indicate otherwise. These reports break down acceptance and matriculation rates by race, enabling the law school to determine whether the school is on track to enroll a “critical mass” of minority applicants. The trial court found that the law school’s practices were designed to ensure that preferred minorities made up between 11% and 17% of law students. Admissions officers have referred to these percentages variously as a “goal” or “target.”
While most Americans appreciate individual consideration of students and value diversity in educational settings, we are deeply and justifiably uncomfortable with government policies that treat people unequally based on racial background.
Proponents of preferences know this, which is why they try so hard to obscure the nature of the programs they defend. Even private universities, which are not bound by the Constitution, strive to avoid public scrutiny by emphasizing the mystery and complexity of programs designed to achieve fairly simple goals and targets.
Whether or not affirmative action programs are good policy is an important question worthy of serious debate, and our national struggle to overcome the devastating social consequences of slavery and segregation is hardly over.
But no meaningful debate is possible when schools won’t tell anyone how the programs work. So far it has taken lawsuits to get detailed information. Regardless of how the Supreme Court decides the Michigan case, the dispute has brought a welcome measure of clarity to a cloudy public discussion.