Secrecy and dishonesty: the Supreme Court, racial preferences, and higher education.

• Author: Thernstrom, Abigail
• Position: From Brown to Bakke to Grutter: Constitutionalizing and Defining Racial Equality

One should never count on the U.S. Supreme Court to think and write clearly--or even to tell the whole truth and nothing but. Its most famous decisions involving racial equality in the last half century, starting with Brown v. Board of Education, (1) are, to put it delicately, a mess. Brown barely qualified as constitutional reasoning, although the bottom line was certainly right. In The University of California v. Bakke (2) the Court turned what should have been an easy question into an agonizing one, the result being a dizzying six different opinions. And the majority opinions in Gratz v. Bollinger (3) and Grutter v. Bolinger (4) managed to wade deeper into the constitutional muck, although that hardly seemed possible beforehand.

Maybe the Court in Brown could not have done better than it did--given the need for unanimity--but Chief Justice Earl Warren's opinion is certainly thin, flimsy, and frustrating. The Fourteenth Amendment is almost missing in action. The Court relied instead on "psychological knowledge"--mainly the flawed self-esteem research of Dr. Kenneth Clark. And the decision reaffirmed the central holding in Plessy v. Ferguson (5)--namely, that it was up to judges to weigh (by often unclear standards) the costs and benefits of policies that engage in the racial sorting of American citizens. Racial classifications were not prohibited. Every constitutional law textbook contains some reference to the soaring rhetoric of Justice John Marshall Harlan's dissent in Plessy, but that dissent was the radical moral vision of a man who has remained a voice in the constitutional wilderness. (6)

Justice Lewis Powell's decisive opinion in Bakke--an opinion in which four other Justices joined only in part--depicted the Court's role as discerning principles, noted that racial classifications must be "precisely tailored to serve a compelling governmental interest," (7) and then labeled a "diverse student body" (8) as an aim that met the "compelling" interest standard. Racial quotas, however, were unacceptable. In its quest for "diversity," a school could use racial identity only as a "plus" factor, (9) one consideration among many. And while Justice Brennan (joined by Justices White, Marshall, and Blackmun) argued that "race-conscious action" (10) was required to remedy "the lingering effects of past societal discrimination," (11) Powell rejected that "amorphous concept of injury," which, he said, "may be ageless in its reach into the past." (12)

"Diversity" was evidently more precise or more principled, in Powell's view. But no other Justice signed on to his reasoning. Five Justices (Powell plus the Brennan four) did agree, however, that both the Constitution and Title VI of the 1964 Civil Rights Act permitted race-conscious policies--benefits and burdens attached to individuals on the basis of the color of their skin.

Allan Bakke won, the University of California lost, and yet the decision gave constitutional legitimacy to preferential admissions policies. The Court had drawn an allegedly principled line between the permissible (race as a "plus" factor) and impermissible (race as decisive) that was meaningless in practice. If race was in the mix, then race was inevitably decisive. Michael Kinsley has put the point well. "Admission to a prestige institution ...," he has written, "is what computer types call a "binary" decision. It's yes or no. You're in or you're out.... The effect of any factor in that decision is also binary. It either changes the result or it doesn't. It makes all the difference or it makes none at all. Those are the only possibilities." (13)

Powell's diversity rationale allowed race to make "all the difference." And thus, twenty-five years later in Gratz v. Bollinger, the Court was once again confronted with the problem of race-driven admissions--precisely the admissions process that Powell had found unacceptable. For all the trouble to which the Bakke Court went, with Justices crafting intricate opinions that amounted to a riot of constitutional confusion, those off the bench, sifting through applications at the University of Michigan and elsewhere, read between the lines and understood that five Justices had signed on to racial double-standards in the admissions process. Race could be a factor--and thus could change the result. Otherwise inadmissible students would become admissible when racial identity was thrown in the mix.

I

The use of race as a decisive factor in admissions at selective colleges and universities, however, was kept under wraps. Imitating Powell's fancy footwork, university administrators, spinning the press and inquisitive preference opponents, insisted that race--like musical talent and leadership skill--was just one consideration in the search for students who would contribute to a rich educational environment. Bits and pieces of evidence suggested otherwise, but facts were hard to come by.

In 1991, however, Timothy Maguire, working part time in the Georgetown registrar's office, discovered that the college grades and LSAT scores of blacks admitted to the Georgetown Law Center were dramatically lower than those of their white peers. (14) Race was not just one of many possible "plus" factors being considered by the admissions committee; it was the only consideration that could have explained the acceptance of most black students. His findings became national news--testimony to how successful schools had been in keeping their racially preferential policies secret.

Georgetown defenders declared Maguire's findings distorted, and he had no way of further verifying them. (15) But the proverbial cat was out of the bag, and the reality of race-driven admissions became indisputable with the Hopwood litigation that resulted in the 1996 finding by the Fifth Circuit Court of Appeals that the University of Texas School of Law had engaged in racial discrimination against whites; (16) with the fight in California that ended in the passage of Proposition 209, forbidding racial preferences in the public sector, including higher education; (17) with a similar initiative in the state of Washington; (18) and with a number of freedom of information lawsuits. Other tantalizing fragments of evidence trickled out, all suggesting that the weight given to racial and ethnic considerations was in fact very substantial, amounting in most cases to a flagrant double standard. (19)

And then William G. Bowen and Derek Bok's widely read and much celebrated book, The Shape of the River, (20) came along. It was a defense of what the authors called "racially sensitive admissions," but their own numbers undermined their argument that schools were engaged in nothing more than morally appealing "sensitivity." Bowen and Bok studied five private schools intensively. Among applicants for admission in 1989 with SAT scores from 1200 to 1249, 19% of whites and 60% of blacks were admitted; in the next bracket up (1250-1299), 24% of whites and 75% of blacks were accepted. (21) Among applicants with near-perfect scores (1500 or better), over a third of whites were turned down, but every single black got in. Indeed, black students with scores of 1200-1249 were nearly as likely to be accepted at Bowen and Bok's five institutions as whites with scores of 1500 or better. Here was a clear picture of race-driven admissions.

The Shape of the River performed an invaluable service in providing hard evidence that the schools themselves had never voluntarily made public. The authors were trusted advocates; others (outside a tight circle) who tried to explore the issue further had no access either to Bowen and Bok's own data or to that which admissions offices continued to keep in tightly locked files. (22) But the secrecy and deceit surrounding preferences at both public and private institutions of higher education was far from unique. Preferential policies in employment, contracting, and voting rights all involved racial double-standards, crafted without public knowledge or consent and sold as providing nothing more than equal opportunity, blacks and whites on a level playing field.

Dishonesty has always been the American coin of the realm when it comes to race--from the Declaration of Independence to "separate but equal" and beyond. For a brief moment in the mid-1960s, when the 1964 Civil Rights Act and the 1965 Voting Rights Act were passed, the country seemed to be embarked on a different course. But policies corrupted by a revised form of dishonesty were built upon the foundation of these two great legislative triumphs. At the center of that dishonesty lay the notion that, with ongoing racial sorting, the nation would move beyond race--that old habits would bring new benefits.

II

Racial preferences were the form that racial sorting took starting in the late 1960s, although they were certainly not what the framers of the great legislative triumphs of the civil rights movement had in mind. The two statutes were pure anti-discrimination laws: open the restaurants on a color-neutral basis, enforce the Fifteenth Amendment. But both were quickly and radically rewritten behind closed doors to embrace race-driven strategies, benefits attached to membership in certain officially-designated "disadvantaged" groups as defined by race, ethnicity, gender, or disability. This larger shift in sensibilities with respect to the meaning of nondiscrimination, and the means by which it was implemented, is the context in which preferences in higher education must be seen.

The least known of these re-writing stories is that involving the Voting Rights Act. (23) In 1965 the Voting Rights Act had one purpose: black enfranchisement in the Jim Crow South. Its only point was equal access to the polls, the opportunity to vote, a guarantee of basic Fifteenth Amendment rights. By 1975, however, the legislation had been amended by a process of administrative and judicial interpretation, the result of which was federal authority to...