EXPLORING SOME OF THE COMPLICATIONS OF UNIVERSITY AFFIRMATIVE ACTION

I. The Bakke Decision

The arguments in the Bakke case are complicated and not always clear. Here is my artful reconstruction of them in a more informal colloquy. (Perhaps in the end you will think "rigged" is a more appropriate adjective than "artful.")

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Brennan-Marshall:

Yes, race is a suspect category, and we have to look at any racial classification made by a public authority very closely. Racial classifications made by state agencies have to be subjected to "strict scrutiny"- but "strict scrutiny" need not mean "strict in theory, fatal in fact." If a public agency has a sufficiently important purpose, such as overcoming the effects of past societal discrimination, that could justify certain preferential programs.

Powell:

No, no, that won't do. Such an argument presupposes that we can distinguish between "benign" and "not-so-benign" discrimination. But that would mean giving some groups greater protection under the Fourteenth Amendment than others. A "two-class" theory of the Amendment is untenable. Because there is no principled basis for deciding between classes that deserve special judicial attention and those that don't, your theory would involve the Court in making all kinds of "political" decisions it is not competent to make. No, in expounding the Constitution, the Court's role is to discern "principles sufficiently absolute to give them roots throughout the community and continuity over significant periods of time, and to lift them above the level of the pragmatic political judgments of a particular time and place" . . . .

Brennan-Marshall:

But look here, Brother Powell, we are not saying that the Court should give less strutiny to certain uses of race. We are saying that the same level of scrutiny can distinguish between some uses of race that the Court ought to permit and some we ought not to permit.

Powell:

No, we can't be permissive in that way. In the past we have allowed racial classifications for only one reason. For example, in employment cases, "racial preferences . . . have been upheld where a legislative or administrative body charged with the responsibility made determinations of past discrimination by the industries affected, and fashioned remedies deemed appropriate to rectify the discrimination. [. . .] But we have never approved preferential classifications in the absence of proved constitutional or statutory violations."

Brennan-Marshall:

That may be true, and it seems reasonable in statutory cases where the statute bluntly says on its face, "do not use race," but why should we restrict ourselves to this singular ground in Constitutional cases? There our job is to construe the very broad language of "equal protection of the laws."

Powell:

We should restrict ourselves because, I repeat, there's no principled way to distinguish between good and bad discrimination.

Brennan-Marshall:

But there is! Look at our past cases, where we struck down Jim Crow laws in the south. What we found wrong in Jim Crow was that it served no purpose except to mark out and stigmatize one group of people with the badge of inferiority. It served no purpose except to create and enforce a caste system. And we certainly agree with you that no public racial classification motivated by racial animus, no classification whose purpose is to stigmatize people as inferior, can pass Constitutional muster. But in the case of the University of California's racially preferential admissions scheme, we are looking at public purposes far different from those that underlay Jim Crow.

Powell:

Well, let's look at those purposes. I say that they have to meet the standard we have used in Fourteenth Amendment cases since 1945: that a racial classification "must be necessary to further a compelling state interest." The University gave four reasons for its policy: (1) to promote integration of the medical schoool and of the medical profession generally; (2) to counter the effects of societal discrimination; (3) to increase the number of physicians who serve the minority community; and (4) to obtain the educational benefits of diversity. Take the first. "If petitioner's purpose is to assure within its student body some specified percentage of a particular group merely because of its race or ethnic origin, such a preferential purpose must be rejected not as insubstantial but as facially invalid. Preferring members of any one group for no reason other than race or ethnic origin is discrimination for its own sake. This the Constitution forbids." Consider the second reason: California "certainly has a legitimate and substantial interest in ameliorating, or eliminating where feasible, the disabling effects of identified discrimination." But "we have never approved a classification that aids persons perceived as members of relatively victimized groups at the expense of other innocent individuals in the absence of judicial, legislative, or administrative findings of constitutional or statutory violations." And the University of California "is in no position to make . . . findings [of constitutional or statutory violation]. Its broad mission is education, not the formulation of any legislative policy or the adjudication of particular claims of illegality. . . ." On the third reason: the University says its policy will improve "the delivery of health-care services to communities currently underserved. . . . But there is virtually no evidence . . . that . . . the [University's] program is either needed or geared to promote that goal." The University "has not carried its burden of demonstrating that it must prefer members of particular ethnic groups over all other individuals in order to promote better health-care delivery to deprived citizens. Indeed, petitioner has not shown that its preferential classification is likely to have any significant effect on the problem." Now, last, for the fourth reason: attaining the benefits of educational diversity. Here is "clearly . . . a constitutionally permissible goal for an institution of higher education. Academic freedom, though not a specifically enumerated constitutional right, long has been viewed as a special concern of the First Amendment. The freedom of a university to make its own judgments as to education includes the selection of its student body. . . . The atmosphere of 'speculation, experiment and creation' - so essential to the quality of higher education - is widely believed to be promoted by a diverse student body. . . ." Since "the interest of diversity is compelling in the context of a university's admissions program, the question remains whether the program's racial classification is necessary to promote this interest." I answer, no. In the first place, "[t]he diversity that furthers a compelling state interest encompasses a far broader array of qualifications and characteristics of which racial or ethnic origin is a single . . . element." So, resorting to racial quotas can't be justified by reference to educational diversity. Now, treating the race of applicants as a "plus," the way admissions officers treat other characteristics, such as special artistic or athletic talents, as a "plus"might be OK; but a racial quota clearly isn't.

Brennan-Marshall:

Look, we're not communicating very well, here Brother Powell. When you say that the University is preferring people of "one group for no other reason" than their race or ethnicity, you are contradicted by your own paraphrase of the University's purposes. The University has "other reasons" that you note yourself: among them, to integrate its student body and the medical profession. What's wrong with those as reasons? Doesn't some vision of educational value and larger public good lie behind them rather than a merely arbitrary "taste" for certain groups? Second, you beg the question by assuming that addressing the effects of "societal" discrimination isn't a good enough reason for using preferences. Your insistence that an institution's use of preferences must be predicated on findings of its own past discrimination represents a narrow and mechanical construction of our past holdings. Third, you say using race as a "plus" in admissions might be OK. But doesn't that method and the University's method really come to the same thing?

Powell:

No, in letting admissions officers use race as a "plus," every applicant is treated as an individual. The Medical School's policy precluded Allan Bakke from even competing for all the available slots in the freshman class, simply because of his race. The Fourteenth Amendment applies to individuals, and there has to be one legal principle for all.

Brennan-Marshall:

We agree with the last contention. We agree that if the state adopted racial classifications for the purpose of humiliating whites, or stigmatizing Allan Bakke as inferior and confining him to second-class citizenship, that classification would be as odious as Jim Crow. But the University's policy had neither this purpose nor this effect. Bakke may be upset and resentful at losing out under the Medical School's plan, but he isn't made to feel stigmatized. We persist in saying that the same Constitutional standard might yield varying results when applied to racial classifications with varying purposes. Purpose is what counts!

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II. Powell's Diversity Argument

Perhaps the foregoing adds no clarity to a murky situation. In any case, let's look in particular at Justice Powell's argument for diversity. A university has a compelling interest in admitting a diverse student body, alleges Powell. Why? Because otherwise it can't offer a good education? This is not the reason Powell gives. Rather, he pegs the university's interest to the First Amendment's protection of academic freedom. Because the university's interest in choosing its students and framing its curriculum is protected by the First Amendment, it has a Constitutional halo around it. The university's interest, however literally trivial, is Constitutionally compelling.

What do I mean by "literally trivial"? Just this. From the First Amendment perspective, the university has as much interest in admitting tuba players as admitting blacks. Yet, no one would make the case that a university has a literally compelling need to enroll tuba players. Indeed, no one would make the case that an institution of higher education must have a marching band at all (requiring tuba players). Many colleges, institutes, and professional schools don't. Good education can proceed without such musical diversity on campus.

Can good education proceed without racial diversity? Why not? Howard University offers very little racial diversity, but would you conclude from this that good education doesn't take place there? (Wellesley College offers little gender diversity [all its students are girls], but would you decline to send your daughter there? All of the students at Calvin College are sincere Christians, but do you think they don't come away with a fine education? [The College probably sends as many students to graduate school as any school its size.] The overwhelming percentage of students at West Point is male. Would you refuse to hire a West Point graduate as badly educated?)

A.

We will come back to the question of racial diversity and good education below. For now, let's return to Powell's argument. He says that because of the university's (Constitutionally protected) interest in diversity, it can make the race of an applicant a "plus" just like any other factor it uses in selecting applicants. Powell points to the "Harvard Model" as free from the Constitutional infirmities of the Davis scheme.

Does Harvard, in fact, treat race as a "plus" in the same way it counts other factors? Let's explore. First, what are some of the other factors Harvard might weigh? Well, being a tuba player, being an athlete, being a member of student government in high school, being a resident of a Rocky Mountain state, being a foreign student, being an older individual with an unusual work history, being a volunteer, being bilingual, being . . . . . etc., etc. Second, how do all those factors play into admissions decisions?

Consider the following stuation. Early in the year's admissions process, a tuba player with a 4.0 and SATs of 1450 gets passed over for a resident from rural Colorado with a 4.0 and SATs of 1450; but at the very end of the process, the value of being a tuba player changes. Suppose the admissions committee notices that it has admitted lots of people from rural mountain areas, scads of rugby players, plenty of student government leaders, flocks of volunteers, oodles of foreign students, hordes of multilingualists, and bunches of individuals across every age range and representing every exotic work history you could imagine. It has in front of it two applications, one from a resident of rural Idaho with a 4.0 and SATs of 1450 and the other from a tuba player with a 4.0 and SATs of 1450. "Why admit another Rocky Mountain resident?" the committee muses to itself. "Besides, we need another tuba player to fill out the band." In goes the tuba player. So, from time to time in the admissions process the weights of different factors keep changing. They don't remain constant. One reason is this. Given that Harvard is committed to fielding a marching band, it needs to have a certain number of tuba players. So it wants to admit a minimum number each year (it needs four or five but it doesn't need thirty). If, in a particular year, an unusually large number of tuba players applies, this particular "plus" factor loses a lot of its value.

Now, Harvard won't treat volunteerism in quite the same way it treats tuba playing. It has no minimum for "volunteers." The number of students admitted each year with a past record of intense volunteering may vary greatly and erratically. Likewise for other factors. Perhaps one year ten students admitted speak Farsi and the next year none do.

Now, consider race. Interestingly enough, race works more like being a tuba player than like possessing a record of volunterism or residing in the Rocky Mountains or speaking Farsi. That is to say, the percentage of blacks admitted into Harvard College each year seems not to vary very much, hovering around 8 percent. The percentage doesn't fluctuate unpredictably, it doesn't defy pattern. It remains fixed and stready. This suggests that as the admission process gets closer and closer toward the end, the value of the race "plus" goes up if the percentage of African American admits hasn't yet reached the 8% mark.

Now, consider Brennan's criticism of Powell's endorsement of the Harvard Plan. There's no practical difference between it and the Davis scheme, contends Brennan. Not so, argues Powell. On the Harvard Plan you are are considered on an individual basis but on the Davis policy, if you are a white applicant, you are ruled out of sixteen positions from the get-go.

Well, is this a difference that makes a difference? It depends. If the factors considered by the Harvard admissions committee are all like "being a volunteer" or "speaking Farsi," then there is a real difference between being considered on an individual basis for all positions as opposed to being automatically excluded from some. Since these factors have to meet no pattern, your possession of some of them remains meaningful throughout the process. By contrast, if you are not a tuba player and the University is committed to admitting four each year, your not being a tuba player may effectively disqualify you as the admissions process winds down, if the quota for tuba players hasn't yet been met. The thumb for tuba players will weigh more and more heavily on the scale. Toward the end, you are as effectively disqualified as if the University explicitily reserved the last four slots for tuba players.

Likewise, if Harvard has a tacit goal of admitting 8% or more black freshmen, then, at the end of the admissions process when this quota hasn't yet been filled, though you are still nominally under consideration if you are white, practically speaking, your chances have become severely diminished. Brennan seems to have a point: Davis is just doing in a crude, open, and up-front way what Harvard does in a subtle and temporally disguised way.

B.

Now, back to the question suspended earlier? Is racial diversity literally necessary for good education? In its pleadings before the court in the Gratz case, the University of Michigan argued that it had a literally compelling interest in having a racially diverse student body. How so?

Go back to Powell's dicta on "educational diversity." What he referred to by that phrase is what I will call the essentials of liberal learning: a good educational environment is one "conducive to speculation, experiment, and creation" (quoting Justice Frankfurter), one conducive to a "robust exchange of ideas." Now, this ideal of liberal learning does not require a single pattern of diversity (there must be ten Catholics on campus and eighteen Protestants, forty-three Democrats and thirty-five Republicans, five foreign students and three farm girls, six classical violinists and one bluegrass banjo player, a cricket bowler and eleven baseball pitchers . . . and so on). A campus where there is a lot of racial diversity may be one where issues about race get discussed more often and more heatedly, but it may also be one where discussions of cosmology figure less in the student newspaper than at a college with a lot of nerd-diversity.

An atmosphere conducive broad liberal learning can be constructed in any number of ways, emphasising some diversities and de-emphasizing others: there is no one ideal mix. It will be very hard for the University of Michigan to make the case that it cannot possibly offer an atmosphere conducive to liberal learning unless it has eight to ten percent African Americans in its student body.

There are two further ways the University of Michigan might defend the singular importance of racial diversity, but this requires cutting loose from the framework of liberal learning implicit in Justice Powell's discussion. First, the University might argue that it has a special mission to enhance civic learning. Civic learning prepares students to take up their roles as citizens in a democratic society. Certainly, from the point of view of civic learning, the campus that is full of discussion about racial issues provides a better environment than the one where cosmology dominates student discussion. So, the University of Michigan, by pointing to its civic mission, might more clearly elevate race as an especially important dimension of diversity. Still, the University must be cautious that its argument doesn't take on the unsavory implication that, where there is little racial diversity, civic learning is bound to be deficient or inferior. Why is this implication unsavory? Because it would say that graduates of Tougaloo, Howard, Morehouse, Florida A & M, Coppin State and the like have not been adequately educated civically. That's not a very credible proposition.

A second alternative defense the Universirty of Michigan might use incorporates certain representational diversities directly into its very mission. The University might argue that as the flagship campus of the state of Michigan, its student body should be roughly representative of the state's population - this because the University's function is to train the future elite of Michigan and that elite ought to be broadly representative of the state as a whole.

Indeed, seventy percent of the University's students come from in-state, and that is no accident. If the function of the University is to serve the people of Michigan, it must explicitly incorporate a representational bias in its admissions process. (The University could easily fill its entire 5,500 freshman class with out-of-state applicants.) If that kind of representational bias is warranted, why not other kinds consistent with the role the University plays the affairs of Michigan?

This kind of representational argument cuts loose from the grounds extolled by Justice Powell in Bakke, but Powell-like arguments don't look like winners any more, in any case. The singularity of Powell's argument on the Bakke Court, the recent skepticism toward it shown by other federal courts, and its inherent weaknesses all suggest that universities have nothing to lose by defending their affirmative action policies with new arguments that actually make sense of the policies.

III. On The End of Affirmative Action As We Know It

If it is a good thing that 8% of the University of Michigan admittees each year are African American, then an affirmative action policy in which the University race-consciously puts its thumb on the admissions scales is the most efficient short-term means for securing this outcome. Alternatives like the Texas "Ten Percent Solution" may allow universities to keep up their numbers but they have the perverse effect of substituting less-capable African American students for more-capable ones.

A.

As a long-term policy, preferential affirmative action is a palliative. It treats a symptom rather than a cause. The reason selective universities have to resort to racial preferences is the "academic achievement gap." The graph on p. 20 of Bowen & Bok mapping the SAT scores of blacks and whites is more significant than first impression suggests. If the "test-score" gap showed up only on the SAT, then every university would scrap the SAT and that would be that. Blacks, just like women, would enter universities in proportion to their high school graduation rates (which is nearly on par with whites). The problem is that the "score gap" shows up everywhere. To quote Christopher Jencks and Meredith Phillips, "African Americans currently score lower than European Americans on vocabulary, reading, and mathematics tests, as well tests that claim to measure scholastic aptitude and intelligence. This gap appears before children enter kindergarten . . . and it persists into adulthood." (Christopher Jencks and Meredith Phillips, eds., The Black-White Test Score Gap [Washington, DC: Brookings Institution, 1998], p. 1.) Now, clearly one important factor at work here is class. Blacks tend to be in lower economic classes than whites, and poor people don't do as well academically as better off people. However, class is only a small part of the story. Black students from families at the same income level as white students achieve lower scores across a range of tests. Moreover, though we stereoptypically picture black students as coming primarily from decaying and shamefully neglected urban schools, the fact is that most black students now attend suburban schools, and the average black child now lives in a school district with similar per-pupil exenditures as districts in which the average white child lives. So the problem of the "score-gap" is deep, pervasive, and not well-understood. (If you are interested in further exploring this issue, the Jencks and Phillips book is a good place to start.)

In any case, this means that the trajectory for blacks (and for Hispanics) won't follow the trajectory for women: knock down the artificial exclusionary barriers keeping them out and they will flood in on their own without any special priming of the pump. Intervention by universities into secondary (and primary schools) can make a difference at the margins in the long run but is not likely to alter the main picture.

B.

Bowen & Bok argue that the artificial pump-priming policies at the institutions they studied produced worthwhile results. Although the sample of schools they studied was small and atypical, we should not think that preferential affirmative action is an artifact of highly selective schools. Wherever universities are selective, they face the black-white achievement gap in some form. Now, the vast range of higher education institutions in this country means that the gap will not disproportionately exclude blacks from higher education in general. It does mean, however, that, blacks may be underrepresented at selective and very selective institutions in the absence of affirmative action (and I count "% solutions" like the Texas Ten Percent Plan as just a backdoor and inferior form of affirmative action).

C.

One common idea broached by people from both the political left and right who don't like affirmative action is this: universities should give preferences by class. Since blacks are disproprtionately lower-class, class-based preferences ought disproportionately to benefit blacks. We can have the racial benefits of affirmative action without using racial preferences. Bowen & Bok provide evidence that this rosy scenario doesn't play out. Affirmative-action-by-class would not keep up the percentage of blacks on selective campuses. Why? Because at any income-level, whites at that income level outscore blacks at that income level on the SAT and other measures of academic achievement. Thus, a campus that set a particular high academic minimum for entrance, then favored the best poor candidates scoring below that minimum, would be admitting mostly whites.

D.

Thus, although there is much to say against affirmative action, if we like its results and think that they are purchased at a tolerable cost, we may have little choice than to continue supporting it, since the alternative policies do not seem as effective or as efficient. But, of course, these speculations may be proved wrong. Jeb Bush's "One Florida Initiative" may let us have our cake and eat it to. Stay tuned.

IV. Fourteenth Amendment Jurisprudence

Stay tuned also as the Supreme Court eventually faces up to its current muddles and makes up its mind about the meaning of the Fourteenth Amendment. And for our purposes, this is the most interesting matter.

In this class we have examined a lot of court cases. Why? Because at one level, the law is simply the working out of moral ideas in practice. We started the semester by noting those very broad moral-dash-political notions that peppered President Bush's Inaugural Address: freedom, justice, civility, equality. Some of these broad notions, like religious freedom and civic equality are actually embedded in the Constitution. Consequently, courts, when they try to apply these notions to actual disputes before them, are unavoidably engaged in a kind of moral reflection.

Now, what the courts do doesn't map perfectly onto what we would do in unfetterd moral reflection because sometimes the courts don't get to the merits of a dispute. They decide it on technical grounds (the plaintiff lacked proper standing to sue or time limits have run out). And when they do address the merits of a case, courts sometimes do so in an oddly mechanical and stilted way. This is because of the doctrine of stare decisis: legal rules and tests laid down in earlier cases govern the decisions in later cases. Consequently, courts seldom say: "let's look at this case afresh, without any preconceptions about how to resolve it."

There are, of course good reasons, for the rule of stare decisis. Nevertheless, it can generate stilted and artificial decisions when past precedents seem now to have been wrongly decided or to be limiting in some way. For example, at the end of the Nineteenth Century, the Supreme Court in Plessy v. Ferguson, construed the Fourteenth Amendment to require no more than "separate but equal" racial accommodations. Blacks could by law be forced to use different public facilities and institutions as long as these were "equal" to those provided to whites. Until 1954, this Constitutional "rule" governed Court decisions, even though its unacceptability was obvious for decades.

In the 1940s and 1950s, the Court began whittling away at segregation by finding that parts of it failed the "separate but equal" test. Still, the "separate but equal" doctrine hobbled the Court from an intellectually honest and straightforward assault on American racism (even if it had been so inclined). With Brown v. Board of Education, the Plessy doctrine was explicitly repudiated. However, if you read Brown, you find there a suprising paucity of argument. You do not find there new and clear principles for attacking racial discrimination.

Throughout the 1960s and 1970s the Court announced one test or another without ever settling clearly on a satisfactory general approach to race. Was Jim Crow wrong because it burdened people on the basis of an "immutable characteristic," skin color? Was Jim Crow wrong because it marked some people with the "badge of inferiority," as second-class citizens? Or was Jim Crow wrong for yet other reasons. Over the decades, the Court has deployed the "compelling state interest" test in Fourteenth Amendment cases, but as you have surely come to appreciate by now, this "test" is more a substitute for reasoning than an aid to it.

So, the hard thinking that you need to do is about the meaning of "equal protection of the law." What kind of equality does the Constitution promise? When it deals with run-of-the mill cases of inequality, the Supreme Court applies another one of its "tests," the "rational basis" test. For example, if the Congress had some public purpose in mind in deciding to subsidize the sugar beet farmer but not the tomato farmer, then such a differential subsidy passes Constitutional muster, according to this test. In what way, then, are the two farmers "equal" under the law?

When a highway needs to be built, the state takes my property but not yours. It is supposed to pay me some compensation, but it can't really make up my loss. When war comes, I get drafted but you don't (you have flat feet). I bear a special burden on behalf of some larger good. Afterwards, the government tries to compensate me through special home loan programs, educational subsidies, and medical benefits, but it never really makes up my loss. Can such differential burdens co-exist with the promise of Constitutional equality?

Consider this differential burden. You are a woman working in state government. You take the civil service exam, making the highest score. But you don't get the promotion. Why? Because three lower-scoring male veterans get put ahead of you.

This burden on women was especially profound in the 1950s and 1960s, as the World War II generation worked its way through the labor force. It meant that no woman, no matter how competent, was likely to work her way into top civil service management positions. This burden still exists, although it isn't as extreme. All states give veterans employment preferences. Doesn't this treat women unfairly? Perhaps so, but under the Constitution you do not have a right to be fairly considered in public emplyment decisions. See the court's comments [higlighted in red] in Feinerman v. Jones; see also the Supreme Court ruling in Massachusetts v. Feeney.

If such differential burdens are perfectly consistent with Constitutional equality, then how will you extract from the "equal protection clause" any general principle that implies the prohibition of racial classifications?

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Perhaps the key lies in the idea of "second-class citizenship." Perhaps what the Constitution promises is that no one can be relegated to that status. What does this mean? Say it means that no group can be disenfranchised, barred from jury service, denied the full protections of the law, and the like. Say it means this:

All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties [to legal proceedings], [and] give evidence[; and similarly all persons shall have the same right] . . . to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.

You may recognize this language from the handout I gave you on "Civil Rights Law." It is from Title 42, Section 1981 of the United States Code. It has been in the U. S. Code a long time, originating as the Civil Rights Act of 1870.

You often hear reference these days to "colorblind law" but note that this legislation, passed two years after the Fourteenth Amendment was ratified, is explicitly framed in terms of color: all citizens are guaranteed the same protections, powers, and liabilities enjoyed by white persons.

(You will not be surprised that this law lay in disuse for the better part of a century.)

Race. When the law touches on race, the Supreme Court treats the question of equality differently. It applies a "more searching scrutiny," as well it should, given the sorry history of race in our country. But why should "more searching scrutinies" necessarily lead to outcomes barring all - or almost all - uses of race?

That is the question the Supreme Court must answer more clearly and persuasively than it has. Perhaps it will very soon.

And that is the question you need to contemplate yourselves.

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