Racial Preference Redux

, George C. Leef, Leave a comment

Consider, if you will, the virtue of simple rules. The First Amendment to the Constitution is a simple rule. It says that Congress shall make no law abridging the freedom of speech. Although the government hasn’t always followed it, having a sharp constitutional line has undoubtedly spared the country a great deal of meddling with free speech. With a simple rule, violations are readily apparent.

Now imagine that the First Amendment instead went like this: “Congress shouldn’t enact laws that abridge the freedom of speech unless it thinks that there is a pretty good reason to do so.” If the Founders had given us so vague and equivocal a rule, there would probably be much less freedom to speak without fear of legal repercussions today.

Back in 2003, the Supreme Court had the opportunity to issue a simple rule with regard to the practice of using racial preferences in making admission decisions at public universities. Instead of deciding in the companion University of Michigan cases that the Constitution does not allow governmental entities to treat people differently depending on what racial category they happen to fit into, the Court produced a marvel of ambiguity that allows racial preferences to continue, but only so long as the admissions people give the appearance of using race “individualistically” rather than just applying a quota. As a result, this issue continues to boil furiously.

We have recently learned that the federal Office of Civil Rights is investigating North Carolina State to see if its continuing use of racial preferences is on the “yes, we think that’s okay” side or the “no, you can’t do that” side of the fuzzy line the Court has painted. Research done by Professor David Armor of George Mason University shows that black students are 13 times more likely to be admitted than are white or Asian applicants with similar academic profiles. Furthermore, emails between NC State officials seem to indicate a desire to fulfill quotas for students in certain racial classifications. State denies that it has been using race “inappropriately.”

Maybe, years from now, the courts will tell us whether State has been naughty or nice, but the right question to ask now is why the university continues to play in the minefield of racial preferences at all. What if the school adopted a race-neutral policy that made no attempt to consciously design the student body except to admit the students with the strongest intellectual aptitudes?

Advocates of race preferences (I know that their preferred but obfuscatory term is “affirmative action,” but clear language facilitates clear thought) immediately answer that there are educational benefits in having a “diverse” student body and that states have a “compelling interest” in obtaining those benefits. In modern Supreme Court jurisprudence, if government has what a majority of the justices regard as a good enough reason to trample upon some provision of the Constitution, they’ll call it a “compelling interest” to seal the victory.

In her majority opinion in Grutter v. Bollinger, Justice O’Connor swallowed whole the University of Michigan Law School’s contention that having a “diverse” student body has educational benefits and that it just wouldn’t have enough diversity unless it employs a race-conscious admissions policy – individualistically. But there isn’t any reason to believe that learning is enhanced in the slightest by virtue of having a racially engineered student body. O’Connor’s opinion was applauded by those with an emotional and/or professional attachment to race preferences, but it’s hard to imagine a flimsier legal fiction that her assertion that universities need to have a “critical mass” of students in a number of racial groups in order to reap the supposed harvest of educational gains.

Oh, but if schools like NC State and the University of Michigan couldn’t discriminate in favor of certain minority groups, then how would members of “historically underrepresented minorities” get into elite universities? Some would do so just on merit. It isn’t as if no black, Hispanic, Native American or other minority student has the demonstrated academic ability to compete. The numbers would be smaller, but that would neither hurt the students or the university. The minority students would merely enroll in less selective institutions where they’re a better fit academically. The university would benefit because weaker students tend to cause professors to go slower and water down their courses.

Universities would be better off if they’d adopt a simple rule – don’t evaluate on the basis of race.

George Leef is the executive director of the John William Pope Center for Higher Education Policy in North Carolina.