The United States Supreme Court
The University of Michigan Admissions Lawsuits

Gratz v. Bollinger and Grutter v. Bollinger
THE BRIEFS

Supporting Gratz and Grutter, the Center for Equal Opportunity et al. as amici curiae (pp 8-10, 15-21): Racial and ethnic discrimination in state higher-education admissions is a major national problem. This Court should address, and reject, the "diversity" justification for racial and ethnic discrimination. (The complete brief is online here.)

Comments by Curtis Crawford,* indented in italics.

ARGUMENT

I. RACIAL AND ETHNIC DISCRIMINATION
IN STATE HIGHER-EDUCATION ADMISSIONS
IS A MAJOR NATIONAL PROBLEM.

There is no doubt that, as a result of the lack of clear guidance in this Court’s Bakke decision, discrimination in the form of racial and ethnic preferences is widespread in American college and university admissions. The ubiquity of such discrimination means it is unlikely to diminish significantly if the Court fails to reject the diversity rationale as "compelling," ruling instead only that the University of Michigan’s plans are not "narrowly tailored."

The Shape of the River, a 1998 book by William G. Bowen (former president of Princeton University) and Derek Bok (former president of Harvard University), is frequently cited by those defending "race-sensitive" admission policies, but even it acknowledges studies estimating "a marked degree of racial preference" in 20 percent of all four-year institutions, and a lesser degree of preference in another 20 percent of them. Id. at 15 & n.1. Because Bowen and Bok also assert that "only about 20 to 30 percent" of colleges and universities are at all selective, they effectively concede that, prior to the termination of race preferences in California, Texas, Washington, and Florida, the only schools that did not [-9-] discriminate on the basis of race and ethnicity were the ones that admitted everyone.

Bowen and Bok also concede that the degree of preference in university admissions is often significant. Race is far from being a mere tiebreaker; "black applicants have had an appreciably greater chance than whites of being admitted," indeed, a "considerably greater" chance. "In the upper-middle ranges of SAT scores, in particular, the admission probability for black applicants was often three times higher than the corresponding probability for white applicants." Id. at 26. It is not surprising then that, as Bowen and Bok further concede, the difference in college grades is "very large." Id. at 72. "The average rank of black matriculants was at the 23d percentile of the class, the average Hispanic student ranked in the 36th percentile, and the average white student ranked in the 53d percentile." Id.

A series of studies conducted by the Center for Equal Opportunity indicates that Bowen and Bok actually understate the pervasiveness and severity of racial and ethnic discrimination in university admissions. To date, CEO has studied undergraduate admissions policies at 57 different schools in eight States across the nation (California, Colorado, Maryland, Michigan, Minnesota, North Carolina, Virginia, and Washington), as well as the service academies at West Point and Annapolis; six medical schools across the country (in Georgia, Maryland, Michigan, Oklahoma, New York, and Washington); and three Virginia law schools.2 The data subjected to the studies’ regression analyses were supplied by the schools themselves, pursuant to state freedom-of-information laws. Every state system studied shows significant amounts of discrimination, and only a [-10-] relatively few individual schools show no evidence of discrimination.3

CEO studies found that black-white gaps in SAT verbal and math scores of 100 points or more are common, as are large odds ratios favoring blacks and, to a lesser extent, Hispanics over whites. The studies have also found corresponding disparities in graduation rates among different groups. Racial and ethnic "diversity" is promoted in some fashion on the websites of every state flagship institution. The diversity rationale is ubiquitous at colleges and universities, and is now spreading into employment, and into primary and secondary education, where it is similarly used to justify preferential treatment on the basis of race and ethnicity.4

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[-15-]

III. THIS COURT SHOULD ADDRESS, AND REJECT,
THE "DIVERSITY" JUSTIFICATION
FOR RACIAL AND ETHNIC DISCRIMINATION.

A. The "Diversity" Rationale is Not Persuasive, Let Alone Compelling.

A decision by this Court that ruled only on the "narrow tailoring" prong of strict scrutiny, and failed to resolve whether the achievement of student body diversity is a compelling interest justifying State racial and ethnic discrimination, would be unlikely to change the behavior of colleges and universities currently engaged in such discrimination.5 It would not change the current de facto legal regime. If schools are allowed to take race and ethnicity into account in deciding whom to admit, they likely will continue to do so, and simply hope that no one will sue them or, if they [-16-] are sued, that they can obfuscate precisely how, and how heavily, race and ethnicity are weighed. For the discriminatory behavior of the schools to abate, they must be instructed unequivocally that diversity is not a compelling State interest.

The only justification that this Court has consistently found sufficiently compelling to justify racial and ethnic discrimination is discrete remediation of prior discrimination.6 There are, perhaps, other governmental interests that might be hypothesized as compelling enough to justify temporary racial and ethnic classifications by the government– such as national security (see Korematsu v. United States, 323 U.S. 214, 218 (1944); Hirabayashi v. United States, 320 U.S. 81, 100-02 (1943)), or preventing bloodshed in the aftermath of a prison race riot (see Lee v. Washington, 390 U.S. 333, 334 (1968) (concurring opinion of Black, Harlan, and Stewart, JJ.) -- and it is probably impossible to adduce them all or to state a formula by which they can be derived and limited. But, except in situations literally involving life and death, this Court has been rightly reluctant to accept nonremedial justifications as compelling (see, e.g., Palmore v. Sidoti, 466 U.S. 429, 433 (1984); Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 275-77 (1986) (plurality opinion)), and it should be especially reluctant to accept a *justification* that is both amorphously grounded and threatens a permanent institutionalization of racial and ethnic discrimination. See Wygant, 476 U.S. at 276 [-17-] ("ageless in [its] reach into the past, and timeless in [its] ability to affect the future"); Metro Broadcasting, 497 U.S. at 612, 614 (O’Connor, J., dissenting) (*diversity rationale* is "too amorphous, too insubstantial, and too unrelated to any legitimate basis for employing racial classifications" and "would support indefinite use of racial classifications, employed first to obtain the appropriate mixture of racial views and then to ensure that the broadcasting spectrum continues to reflect that mixture"). As the petition points out (pp. 28-29), the *diversity rationale,* if accepted for higher education, could also justify pervasive discrimination in other areas of public life, including primary and secondary education, employment, service on different public boards, jury selection, housing, and so forth

If education were impossible without racial classifications, then it might be fair to argue that States have a compelling reason to discriminate. But the University of Michigan’s claim here is merely that education is improved, to some uncertain and unquantifiable degree, by interracial conversations and comments that occur randomly, sometimes in classrooms and sometimes outside them. Whatever the meaning of "compelling" may be, this falls short.

For an educational interest to be sufficiently compelling to justify race discrimination, it is also logical to require that the purported educational benefits significantly outweigh the various costs to the institution and to the wider society. The value of anything must consider its liabilities. And the liabilities attendant to the use of racial and ethnic preferences are substantial: They are personally unfair and set a disturbing legal, political, and moral precedent to allow State racial discrimination; they create resentment;7 they [-18-] stigmatize the so-called beneficiaries in the eyes of their classmates, teachers, and themselves;8 they foster a victim mindset, remove the incentive for academic excellence, and encourage separatism;9 they compromise the academic mission of the university and lower the academic quality of the student body; they create pressure to discriminate in grading and graduation; they breed hypocrisy within the school; they encourage a scofflaw attitude among college officials; they mismatch students and institutions, guaranteeing failure for many of the former;10 they obscure the real social problem of why so many African Americans and Hispanics are academically uncompetitive; and they get state actors involved in unsavory11 activities like deciding which racial and ethnic minorities will be favored and which ones not, and how much [-19-] blood is needed to establish authentic group membership.12

There are superficially a number of benefits that might be claimed for a diverse student body, but on analysis none can justify racial or ethic discrimination. For instance, greater diversity might teach toleration, acceptance, and openmindedness about other racial groups -- but this lesson is undermined when there is a gap in the academic ability of the members of the different groups on campus, as there is when admission preferences are used. Greater diversity might lead to exposure to people with different ideas or backgrounds, but it is very dubious to use race as a proxy for anticipating [-20-] individuals’ thoughts and experiences. There are few ideas or experiences that only members of a particular racial group can have, and fewer still that all members of that group will share. In sum, racial diversity cannot be equated with actual viewpoint diversity13 (and, indeed, universities show little interest in viewpoint diversity relative to melanin diversity).14 Contradictorily, it might be argued that greater diversity is needed to teach the specific lesson that not all African Americans, for instance, think alike, but this is a rather obvious and narrow lesson, and it is hard to understand why it can be taught only by using racial and ethnic preferences. The diversity rationale also posits that the educational effects of random interracial conversations and comments will be obtained only by unplanned face-to-face exposure at a university; they cannot be gained in any other way (for [-21-] example, by studying Martin Luther King, Jr.’s "Letter from a Birmingham Jail" or Ralph Ellison’s Invisible Man) or any other place (such as the interracial workplace for which the student is being prepared, or the popular culture – where the message of equality and tolerance is ubiquitous – or the student’s neighborhood or house of worship, or the student’s home). None of this is plausible, let alone compelling.

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Notes:

2. The studies are available on CEO’s website, www.ceousa.org. [return to text]

3. All the undergraduate schools except for Maryland’s are discussed in Robert Lerner & Althea K. Nagai, Pervasive Preferences (2001). All the medical schools, again excepting Maryland, are discussed in Preferences in Medical Education (2001). Maryland undergraduate admissions are discussed in Preferences in Maryland Higher Education (2000); Maryland’s state medical school is discussed in Racial and Ethnic Preferences and Consequences at the University of Maryland School of Medicine (2001). The three Virginia public law schools are discussed in Racial and Ethnic Preferences at the Three Virginia Public Law Schools (2002). In addition, the state undergraduate institutions in California, Colorado, Michigan, Minnesota, North Carolina, Virginia, and Washington, and the service academies, were each the subject of one or more separate studies by CEO. All the studies were authored by Robert Lerner and Althea K. Nagai. Material from these studies appears in Robert Lerner & Althea K. Nagai, "Reverse Discrimination by the Numbers," Academic Questions, Summer 2000 at 71; Robert Lerner & Althea K. Nagai, "Preferences in Higher Education Admissions Policies: An Empirical Overview," Giftedness and Cultural Diversity (Diane Boothe & Julian Stanley eds.)(forthcoming). [return to text]

4. See, e.g., Wessman v. Gittens, 160 F.3d 790 (1st Cir. 1998); Tuttle v. Arlington County School Board, 195 F.3d 698 (4th Cir. 1999); Eisenberg v. Montgomery County Public Schools, 197 F.3d 123 (4th Cir. 1999), cert. denied, 529 U.S. 1019 (2000); Taxman v. Piscataway Bd. of Educ., 91 F.3d 1547 (3d Cir. 1996), cert. granted, 521 U.S. 1117, dismissed per stipulation, 522 U.S. 1010 (1997). [return to text]

5. The use of strict scrutiny has two distinct but overlapping justifications. Its use is sometimes justified as necessary to determine whether the purported nonracial justification for a policy really is nonracial; other times, the doctrine seems to be that even concededly racial classifications are permissible if the stakes are high enough. The diversity rationale cannot pass muster under either approach. There can be no doubt that what universities like respondent are really after is not a variety of "experiences, outlooks, and ideas," Bakke at 314, but "some specified percentage of a particular group merely because of its race or ethnic origin," id. at 307. Cf. Metro, 497 U.S. at 614 (O’Connor, J., dissenting). And, as discussed below, if the flimsy educational benefits put forward by respondents are a "compelling" justification, then anything is. [return to text]

6. See, e.g., City of Richmond v. J.A. Croson Co., 488 U.S. 469, 493 (1989) (plurality opinion) (race classifications must be "strictly reserved for remedial settings"); id. at 524-25 (Scalia, J., concurring). See also Metro Broadcasting, 497 U.S. at 612 (O’Connor, J., dissenting) ("Modern equal protection doctrine has recognized only one such [compelling] interest: remedying the effects of racial discrimination."); id. at 632 (Kennedy, J., dissenting) (criticizing "the use of racial classifications … untied to any goal of addressing the effects of past race discrimination"). [return to text]

7. See Paul M. Sniderman & Thomas Piazza, The Scar of Race 8-9, 97-104, 109, 130, 133-34, 146-50, 176-77 (1993); and Paul M. Sniderman & Edward G. Carmines, Reaching beyond Race 15-58 (1997). [return to text]

8. The principle of nondiscrimination serves all Americans, and the use of preferences harms not only those immediately discriminated against but also the supposed beneficiaries. The use of a double standard communicates in this context that some racial and ethnic groups are incapable of competing at the same intellectual level as others. See Croson, 488 U.S. at 493 (plurality) ("[c]lassifications based on race carry the danger of stigmatic harm. Unless they are reserved for remedial settings, they may in fact promote notions of racial inferiority and lead to the politics of racial hostility."); Metro, 497 U.S. at 636 (Kennedy, J., dissenting). On self-stigmatization, see Shelby Steele, The Content of Our Character 111-25 (1990). [return to text]

9. See John H. McWhorter, Losing the Race: Self-Sabotage in Black America (2000)(e.g., pp. 235-38). [return to text]

10. See Stephan Thernstrom & Abigail Thernstrom, America in Black and White 405-11 (1997). [return to text]

11. Cf. Metro Broadcasting, 497 U.S. at 633 n.1 (Kennedy, J., dissenting) (quoting Justice Stephens’ dissent in Fullilove v. Klutznick, 448 U.S. 534- 535 n.5 (1980), which in turn cited laws from the Third Reich) ("[T]he very attempt to define with precision a beneficiary’s qualifying racial characteristics is repugnant to our constitutional ideals."). [return to text]

12. Powell’s rationale in Bakke appeared to hinge on an assumption that a prohibition on racial discrimination by a university would somehow trench upon the school’s First Amendment rights. Bakke at 313 ("petitioner invokes a countervailing constitutional interest, that of the First Amendment"). This was dubious at the time, and remains so. Cf. University of Pennsylvania v. EEOC, 493 U.S. 184, 198-99 (1990); Bob Jones University v. United States, 461 U.S. 574, 603-05 (1983). It could justify policies of segregation as well as affirmative action (see Runyon v. McCrary, 427 U.S. 160, 175-77 (1976)) and could be used by many employers– for instance, newspapers– who could wrap themselves in the First Amendment. Nor is it clear how a prohibition of racially discriminatory student admission policies would "abridg[e] the freedom of speech" for anyone. Acts of racial discrimination are simply not a form of expression entitled to constitutional protection, nor are such acts needed for teaching or learning. The "right" to engage in racial discrimination can be limited when the discriminator is not a state actor; a fortiori, it must yield when the discrimination is at odds with the Constitution. Id. at 176 ("‘the Constitution . . . places no value on discrimination’") (quoting Norwood v. Harrison, 413 U.S. 455, 469 (1973)); Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 260 (1964)("[I]n a long line of cases this Court has rejected the claim that the prohibition of racial discrimination in public accomodations interferes with personal liberty."); Roberts v. United States Jaycees, 468 U.S. 609, 628 (1984). [return to text]

13. The errors in this approach were convincingly explained by Justice O’Connor in her Metro dissent, 497 U.S. at 602: "Social scientists may debate how peoples’ thoughts and behavior reflect their background, but the Constitution provides that the Government may not allocate benefits and burdens among individuals based on the assumption that race or ethnicity determines how they act or think." It makes more sense to select for the desired qualities rather than rely on increasingly dubious generalizations and stereotypes. See id. at 622 ("The FCC could directly advance its interest by requiring licensees to provide programming that the FCC believes would add to diversity."). In sum, "Government may not use race and ethnicity as ‘a proxy for other, more germane bases of classification.’" Hogan, 458 U.S., at 726, (quoting Craig v. Boren, 429 U.S. 190, 198 (1976)). See also Metro Broadcasting, 497 U.S. at 632 (Kennedy, J., dissenting) (criticizing "the stereotypical assumption that the race of [station] owners is linked to broadcast content"); United States v. Virginia, 518 U.S. 515, 533 (1996)("Supposed ‘inherent differences’ are no longer accepted as a ground for race or national origin classifications."). [return to text]

14. See e.g., "The Shame of America’s One-Party Campuses," Am. Enterprise, September 2002 at 18-25. [return to text]