Racial preferences in admissions: myths, harms, and alternatives.

• Author: Levey, Curt A.

1. INTRODUCTION

   Thank you to Albany Law Review for inviting me. I'm here because I'm an attorney at the Center for Individual Rights and we have represented the plaintiffs in most of the legal challenges to race-based admissions practices, (1) most notably, Hopwood v. State of Texas, (2) Smith v. University of Washington Law School, (3) and the two Michigan cases, Gratz v. Bollinger (4) and Grutter v. BolIinger. (5) Instead of focusing on the broad topic of affirmative action, which in my view includes alternatives that are both legal and desirable, I am going to limit myself to racial preferences. I will be talking about things like the University of Michigan giving twenty bonus points if you are a Black, Hispanic, or Native American applicant, and zero points if you are White, Asian, or Arab. (6) That is what I mean by racial preferences, as compared to, say, affirmative action based on economic disadvantage, which is one of many race-neutral alternatives.

   Now I know a lot of people don't like the term "preference," but if we are not talking about preferences then we can all go home, because there is no need to find a compelling interest. It is only if you are giving preference based on race or ethnicity that you need to justify it with a constitutionally compelling interest. If these really are not preferences, then you don't need more than a rational basis under the Constitution, and someone should tell the University of Michigan that it can stop arguing that diversity is a compelling interest.

   I am going to refer to the Constitution most of the time, but the assumption is that the legal standard for racial preferences will be virtually the same, if not identical, under Title VI of the 1964 Civil Rights Act. And thus perhaps one of the most misunderstood things about this whole legal battle is the widespread perception that the result will be limited to state universities. In fact, it is highly unlikely that the Supreme Court's decision is going to be limited to just state universities. It is much more likely that it will apply to all universities, because all universities with a couple of exceptions--the ones that don't accept federal funds--are covered by Title VI.

   It is probably true that opinions on both sides of this issue are as vastly different as Professor Johnson pointed out, with some people thinking preferences are the worst thing in the world and some thinking they are the best thing in the world. But I do think there are at least a couple of points of agreement. One I would hope is that the ultimate ideal is a fully integrated society in which race does not play a role in a discriminatory way. I think the fundamental policy disagreement is really over how we get there--whether the way to get there is to be race neutral or to take race into account.

   I believe the latter view is too pessimistic. Its proponents essentially say "race is a huge factor in American society and we really can't overcome it. It is naive to even think we can be race blind." I am sure from their point of view, I am, at best, naively optimistic. Professor Johnson said that race neutrality does not exist. Well, if it does not exist and it cannot exist, I think that is sad and we are in real trouble. If the future only holds a battle between preferences for minorities versus preferences for White people, then there is not going to be any good outcome. The only long term solution is race neutrality. We are not perfect human beings. I don't think we are ever going to be 100% race blind, but I think certainly we should be heading in that direction and not in the reverse direction.

   Another point of agreement, which Professor Johnson noted, is that the standard here is strict scrutiny. Ten years ago we might have been up here debating what is the constitutional standard that you apply to racial preferences. But now, due to Supreme Court precedent in the last ten years, we all agree that the standard is strict scrutiny, which is the highest standard of review. Under strict scrutiny, you need both a compelling state interest and narrow tailoring.

2. SUPREME COURT PRECEDENT ON RACIAL PREFERENCE RATIONALES

   The Supreme Court has been clear about one compelling interest for racial preferences, namely that you can use preferences to remedy the effects of your own past discrimination. I know that to people on the other side of the debate, that remedial rationale is a very narrow exception. However, I actually think that it is a fairly generous standard. It certainly goes beyond the torts standard, under which, if you as an individual suffer an injury, then you are entitled to a remedy. Under that standard, if a school denies you admission because you are black, at the very least, the remedy should be an order that you be admitted. But the remedial rationale goes beyond that, in saying that, because of past discrimination against minorities, a new generation of minorities that may not have even been born when the discrimination occurred, should get a preference. The remedial rationale is getting close to the concept of group rights, which at least Justice Scalia does not accept. (7)

   Nevertheless, I think the vast consensus is that the use of racial preferences under the remedial rationale is okay. However, despite this general acceptance, the remedial rationale has not been a very effective defense for racial preferences in admissions. It has been much more successful in the realm of government employment. One reason for that is a difference in how long the effects of past discrimination last. You can look at the composition of a police force and say it's affected by who was hired 20 years ago. But when you are talking about college or professional schools, you are talking about a 3 or 4 year cycle. It is a lot harder to make the case that the current composition of a student body is being affected by discrimination that occurred 20 years ago.

   Arguably, recent Supreme Court precedent suggests that remedying the effects of your own past discrimination--the remedial interest--is the only compelling interest that can justify racial preferences. I think you can make that case pretty strongly when it comes to government employment and contracting. The big, open issue that hopefully will be decided by the Supreme Court this term is whether there is a second compelling interest for racial preference in admissions, namely the diversity rationale. (8)

   Whatever the advantages of a diverse student body might be, I do not think you can base the diversity rationale on the Supreme Court's decision in Regents of the University of California v. Bakke, (9) because, at the end of the day, there was only one Justice, Justice Powell, who endorsed the diversity rationale. (10) If there is any case on which people disagree about its meaning, it's Bakke. In a fractured opinion, such as the one in Bakke, you can combine different parts of the opinion to get a majority, but only where there is a common denominator. But in Bakke, there is no common denominator because the four Justices in the Brennan opinion, while voting to uphold the racial preferences at issue, did not endorse the diversity rationale. (11) Those four Justices went off on different grounds, specifically the rationale of remedying societal discrimination. Had they said in their opinion that racial preference can be justified both as a remedy for societal discrimination and by diversity, then clearly there would be a common denominator between those four Justices and Justice Powell. In that case, diversity would be a compelling interest under current law. But that's not what the four Brennan Justices did. They did not even join the part of Powell's opinion that set forth the diversity rationale. They joined other parts of Powell's opinion, but not that part. (12)

   It has been argued by some that Bakke stands for the proposition that diversity is not a compelling interest, since the four Brennan Justices explicitly chose not to join the part of Powell's opinion that endorsed the diversity rationale. I...