by Curtis Crawford










(December 1996)

Have they no shame? Opponents of California's Proposition 209 are trying to have nondiscrimination declared unconstitutional. I am not making this up. What they wish to outlaw is not racial and sexual discrimination, but its prohibition. They hope to obtain such a declaration at the highest judicial level, and have already been encouraged at the lowest.

Prop. 209 is an amendment to the constitution of California, adopted last month by ballot. It bans discrimination or preference, based on race, sex or ethnicity, by agencies of the state. Its opponents want a ruling from the Supreme Court that such provisions in state constitutions violate the Constitution of the United States.

Who are these opponents? They include the American Civil Liberties Union, the National Association for the Advancement of Colored People and the National Organization of Women. A generation ago these organizations were sworn enemies of racial and sexual discrimination. They were leaders in the successful movement to adopt antidiscrimination laws in every state. Today they want the U.S. constitution to forbid principles that only yesterday they gloried to uphold.

Why the reversal? Because, we are told, a ban on discrimination and preferential treatment would outlaw affirmative action. This formulation is new. For decades the supporters of affirmative action had pretended that it was simply a means of "opening doors" and "assuring equal opportunity": that no discrimination was involved. But the fight against 209 changed all that. The amendment's opponents acknowledged that almost all the state's affirmative action programs for minorities and women require unequal treatment, based on race, ethnicity or sex. These would be swept away by a ban on discrimination and preference.

They lost the vote and now they claim that 209 is unconstitutional. Why? They allege that the amendment "treats the unfinished business of rooting out discrimination" as if it were no concern of government. That it would "block legislation needed to protect minorities and women from discrimination." That it would prevent the state from fulfilling its constitutional duty "to redress past discrimination against minorities."

But these allegations are clearly false. The amendment leaves the state free to act against discrimination by command, punishment, compensation, precept and example. One means alone is barred: government may not combat discrimination by discriminating.

After all, we do not authorize the state to rob people in order to root out theft, to defraud the public in order to counteract taxpayer fraud, to embezzle the funds of embezzlers and in general to combat unlawful conduct by perpetrating it. When government makes a rule of doing wrong to correct wrong, it destroys its ability to inculcate what is right.

The plaintiffs have not completely silenced the inner voice telling them that there is something wrong with discrimination based on race or sex, no matter whom it favors. Hence their unblushing Orwellian rhetoric: they insist that to forbid discrimination is really to discriminate. They ask us to believe that, by eliminating programs that benefit minorities and women, the amendment "is clearly discriminatory in its present and future impact..." "It embodies the very sort of invidious race and sex discrimination that the Equal Protection Clause was designed to prevent..."

These are depths to which the historical opponents of antidiscrimination laws had not the sophistry to descend. The Civil Rights Act of 1964, which barred racial discrimination in private employment, public accommodations, and all programs receiving federal aid, was debated in the Senate for many months. In all those words the opposition never asked anyone to believe that, by eliminating practices that benefitted white people, the bill was at heart discriminatory.

In the 1950s the civil rights movement sought to persuade America that racial discrimination was morally wrong and constitutionally invalid. In the 1970s the feminist movement sought a constitutional amendment that would clearly ban sexual discrimination. In the 1990s a very different banner is now unfurled. [return to table of contents]


( July 1997)

The lawsuit strikes many as preposterous, but the plaintiffs have already won the first round. Is it possible that the law is on their side?

The suit is the effort by opponents of California's Proposition 209 to have it declared unconstitutional. Adopted by ballot last November, Prop. 209 would amend the state constitution to ban preferential treatment based on race, ethnicity or gender in public employment, education and contracting. This amendment, according to the plaintiffs, would violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.

The Equal Protection Clause has long been interpreted to forbid unequal treatment, by the states, based on race or sex. It is the sword by which state-sponsored racial segregation was struck down. To claim now that this clause makes it unlawful for the states to forbid unequal treatment by their own agencies seems bizarre.

Nevertheless, a federal district court has granted a preliminary injunction against enforcement of 209, on the grounds that the lawsuit will probably succeed. The judge and the plaintiffs place great reliance on two Supreme Court cases, Hunter v. Erickson (1968) and Washington v. Seattle School District (1982). In these decisions the Equal Protection Clause acquired a new interpretation, of which most people are blissfully unaware, and which is quite unfriendly to the California amendment.

In Hunter the city council of Akron, Ohio, had passed a Fair Housing ordinance, banning discrimination based on race, ethnicity or religion. Whereupon the voters, by ballot initiative, amended the city charter to provide that any law regulating the sale or rental of housing on these bases must be approved by both the city council and a popular referendum. This amendment was declared unconstitutional, as violating the Clause.

In Seattle the city school board had adopted a racial integration plan, which required the extensive use of mandatory busing. In response a state law was enacted by ballot, providing that no student could be required to attend any school that was not the nearest, or next nearest, to his home. Exceptions were permitted for some purposes, but not for racial integration. This law met the same fate as the Akron amendment.

The Supreme Court reached these decisions by means of a new definition of "racial classification," a central term in the interpretation of the Equal Protection Clause. When a law is held to be a racial classification, it is ordinarily struck down as unconstitutional. The new definition was not meant to replace the older one, but to supplement it by adding a second meaning.

By the original definition, a law is a "racial classification" if it treats people differently, based on their race or ethnicity.

Under the supplemental definition a law, even though neutral in its language, becomes a "racial classification" if it meets three criteria: (1) the law deals with racial matters, (2) it transfers decisions on those matters to a different level of government and (3) the transfer makes it harder for racial minorities to secure favorable legislation. The rationale is that such a law treats racial minorities differently to their disadvantage by placing obstacles in their way that other groups do not have to face.

What happens when these criteria are applied to Proposition 209? All three are satisfied. By prohibiting racial preference at the constitutional level, 209 deals with racial matters and transfers decisions concerning them from local and state government to the state constitution. It thus makes it harder for racial minorities than for non-racial groups to secure preferential laws based on group membership.

If the definition of "racial classification" constructed in Hunter and Seattle is valid, then 209 is a racial classification. But can this definition withstand reasonable examination?

Whenever the courts add to the meaning of an important term a second definition that differs materially from the first, a risk is incurred. The risk is that the second definition, or one of its necessary implications, will turn out to contradict the first definition. The law will then be at war with itself, prohibiting with one definition what is permitted with the other. When this happens one definition must be scrapped or both revised.

The present case demonstrates that the second definition of "racial classification" contradicts the first. By the first definition Proposition 209 is not a racial classification and is thus presumably constitutional; by the second definition it is a racial classification and thus presumably unconstitutional.

But the California amendment is not the only instance that exposes the problem. Any state constitutional provision, any state law, any federal statute or regulation that bans unequal treatment based on race, collides with this new definition. Each of these (1) deals with racial matters, (2) transfers decisions on them to a level of government that is different from and less accessible than local government, and (3) by this transfer makes it harder for racial minorities than for others to secure preferential treatment for their group.

Can the Court, when creating the second definition, have meant to render unconstitutional all state and federal laws that forbid unequal treatment based on race? Surely not. The new doctrine was launched in Hunter and confirmed in Seattle with no analysis by the Court of its possible impact on state and federal laws that forbid all racial discrimination. In the circumstances of these two cases the supplemental definition seemed to promote nondiscrimination, not forbid it.

But in the California case we discover that the new definition, though occasionally an ally of racial nondiscrimination, is at heart its enemy. Consequences that previous courts did not foresee, and cannot have intended, are now upon us.

What is preposterous is not the present lawsuit, or the lower court's initial ruling in its favor, but the judicial doctrine that invited them. It renders constitutionally suspect all state and federal laws that ban unequal treatment based on race or ethnicity. The doctrine should be scrapped, as a 'smart' bomb fabricated for noble purposes, but without due consideration of the target onto which it would inevitably fasten. [return to table of contents]



(January 1998)

It is now the law in California, Texas, Louisiana and Mississippi that public colleges and universities may not grant preference based on race or ethnicity in student admissions.

If this prohibition became nationwide, applying to private as well as public institutions, how would it affect minority enrollment? Would it "resegregate the academy," as supporters of affirmative action have charged?

To answer these questions would be easier, if colleges had revealed the percentage of applicants they have been admitting via racial preference. Nevertheless, with some arithmetic and a little patience we can deduce the impact of a preference ban from information that is in the public domain.

The College Entrance Examination Board provides extensive data on the million-plus students who take the SATs each year. The number covered, about two-thirds of college-bound youths, are more than enough to serve as a representative sample of the national applicant pool. The data include the distribution of both test scores and high school grades by race. From this we can calculate the percentage of admittees who would be minorities, if selection were based on scores and grades without racial preference. Such calculations cannot tell us exactly what would happen, but they provide a reasonable estimate.

The chief beneficiaries of racial or ethnic preference in undergraduate admissions have been blacks, Hispanics and American Indians (BHI). In the 1997 report by the College Board, 207,000 test-takers (over 18%) identified themselves as members of one of these groups, including 110,000 (almost 10%) as blacks. What proportion of the entering class would these groups occupy, in schools of various levels of difficulty, if racial preference were abandoned?

We can divide colleges and universities into three groups, based on whether they appeal primarily to students in the upper 35%, the next 50% or the bottom 15% of the applicant pool. If schools in the first group counted only grades, they would admit applicants whose high-school average was A- or better, 12.5% of whom in 1997 were B, H or I. If they counted only test scores, they would take students who were above 550 in the verbal and/or the math section of the SAT, about 8% BHI. Since most schools weigh both grades and scores, on average the BHI proportion of the applicants who qualify for admission will be at a midpoint, say 10.5%. The same kind of calculation puts the average black proportion at about 4%.

Schools in the second tier cater to the next 50% of the pool. This means grade averages from B- to B+ or test scores between 400 and 550. Some 21.5% of the students with these grades, and about 20% of the students with these scores, were BHI. Second-tier colleges that count both grades and scores will admit say 21% BHI. For B alone the comparable percentage is about 11.

Virtually all the students in the bottom 15% have grade averages from C- to C+, and test scores from 250-400. If this segment is defined by grades, the BHI percentage is 31.5; if by scores, slightly over 38; if by both, say 35. For blacks the estimate is about 22%.

Selective schools rely primarily, but not exclusively, on grades and scores. In addition, they consider various indicators of achievement (honors courses taken, extracurricular activities, athletic prowess) and disadvantage (family poverty, inferior schools). Some indicators disproportionately favor BHI; some not. It is a reasonable guess that their net impact, impartially employed, would raise the real BHI percentage somewhat above my estimates, which are based solely on grades and scores.

Schools could choose to manipulate admissions requirements in order to maximize BHI enrollment, increasing the weight of considerations that favor BHI and decreasing the weight of considerations that do not. Such policies would raise BHI admissions in selective colleges substantially above those I have calculated. But this would constitute preference based on race. It is a settled principle that policies, though neutral on their face, are racially preferential if adopted in order to favor a racial group.

Supposing, however, that a preference ban were conscientiously obeyed, would it mean the end of racial integration in our colleges and universities? Obviously not. Third-tier schools, with 35% BHI, would have plenty of room for whites and Asians (WA). At the second tier the BHI percentage (21) would not be much different from their proportion of all testees. First-tier schools, though predominantly WA, would still have an average of 10.5% who were black, Hispanic or American Indian, even if they used only grades and scores.

As one climbs toward the colleges of highest rank, the BHI proportion does become smaller. Schools that confined themselves to the top 20-25% of applicants (grades A to A+; scores above 600) could still expect 9% BHI, including 3.5% B. But schools (are there any?) that admitted only the top 5 or 6% (grades A+, scores above 700) would be down to 7% BHI, 2.5% B.

A national ban on racial preference in undergraduate admissions would not end, or even reduce, the overall racial integration of our colleges and universities. In the most selective schools the racial balance would shift, but minority students lost at this level would be gained by other schools a little further down. And white and Asian applicants would secure what their black, Hispanic and American Indian fellow-students already enjoy: the right not to be discriminated against on account of race. [return to table of contents]



Participants in President's Clinton's National Dialogue on Race are finding that worthwhile discussion of racial issues is hard.

One obstacle is that people differ in how they define crucial terms, and they are usually unaware of the difference. If you and I, without knowing it, use the same word to mean quite different things, we literally do not know what we are talking about.


For example, how do people define racial discrimination? Presumably, as discrimination based on race or ethnicity. But what is meant by discrimination? A difference in treatment. Any difference in treatment, or only one that seems unjust?

Some people define discrimination as simply a difference in treatment. This definition has one part: a fact. Other people mean by discrimination a difference in treatment they disapprove of. This definition has two parts: a fact and a condemnation.

The two-part definition is quite popular. Ask yourself whether you ever call a difference in treatment discrimination, if you think it's okay. For example - travel discounts for the elderly, separate athletic competition for men and women, scholarships for the needy. All of these are differences in treatment, based on age, sex or wealth. But chances are that you would not label them discrimination, unless you disapproved.

Unfortunately, the two-part definition has unexpected, paradoxical consequences. It turns the proud declaration, "We are against racial discrimination!", into an empty statement, "We are against every race-based difference in treatment that we are against." It allowed upholders of racial segregation to claim that their policies did not discriminate. It allows supporters of affirmative action to claim that their policies do not discriminate. Both groups approve of the difference in treatment required by their policies; therefore, they do not label it discrimination, if they are using the two-part definition.

Moreover, this definition derails any attempt to discuss the rights and wrongs of racial discrimination. People cannot debate the morality of something they have predefined as wrong.

We are rescued from these problems by the one-part definition, that discrimination is simply a difference in treatment. To call an action discrimination in this sense only states a fact; whether the action is unjust remains to be determined. So this definition restores meaning to discussions and declarations concerning the morality of racial discrimination.

For the National Dialogue on Race to deal effectively with the rights and wrongs of different treatment based on race, the one-part definition of discrimination should be adopted, and its popular rival set aside. If that proves impossible, it will be better to omit the word discrimination entirely, and to address the issue directly as difference in treatment.


Do people have a right to equal opportunity in higher education and employment regardless of their race? Most Americans would say, Yes. But the consensus is not as solid as it appears, because this right is defined in two different ways that flatly contradict each other. One task of a National Dialogue on Race is to uncover and clarify this contradiction. Here are the two definitions.

Definition #1. Equal opportunity regardless of race means that when you apply to attend a college or get a job, your race doesn't count for you or against you. An equal opportunity means an equal chance. Equal opportunity regardless of race means that your chances of being selected or rejected, promoted or fired, paid well or badly, are not increased or decreased by your racial identity.

Your race doesn't matter. No one treats you differently, to your advantage or your disadvantage, because of your race. The idea that race makes a difference, that it should influence whether you are selected, is in direct conflict with this definition.

Definition #2. Equal opportunity regardless of race means that minority individuals, through affirmative action, are given the same chance of success they would have if they had been born white. Underlying this definition is the belief that blacks, Hispanics and American Indians are more likely than other Americans to have suffered racial discrimination, attended inferior schools or grown up in homes that were economically, educationally or culturally impoverished.

In this view, your race does matter. The disadvantages that cling to your racial identity must be counteracted by programs that treat you differently, to your advantage. Equal opportunity regardless of race means that the disadvantages tied to race are offset by advantages based on race.

Clearly, these two definitions are incompatible. Colleges and professional schools, public and private employers, cannot bestow advantage on the basis of race (as required by the second definition), if they disregard race (as required by the first definition).

Under the label, "equal opportunity regardless of race," lie contradictory ideas. Because we were using the same words, we made the ancient mistake of assuming that we spoke of the same things. By acknowledging the contradiction, we destroy an illusion of national consensus. But we gain thereby a better grasp of the issues that need to be argued in a National Dialogue on Race.


Affirmative Action is one of the hardest issues to address for President Clinton's National Dialogue on Race. A major part of the difficulty is the public disagreement as to whether affirmative action is basically preferential treatment. Opponents charge that it is; supporters refuse to admit that the charge is justified.

How can people reasonably consider whether affirmative action is a good idea, if their notions of what it is contradict each other? Fortunately, the contradiction is more apparent than real.

A typical college affirmative action program for racial minorities (usually blacks, Hispanics and Native Americans) includes lower standards of admission, extra financial aid, and special tutoring. These benefits, based on race, are over and above what is available to all students, based on individual merit or need.

The defenders of affirmative action do not publicly concede that it amounts to preferential treatment, but their arguments point to that conclusion. They argue that if preferences for athletes, veterans and alumni children are acceptable, so are affirmative programs for racial minorities. Although they deny that under these programs unqualified candidates are preferred, they do not deny that the less qualified are often preferred over the more qualified.

But the strongest evidence that they view affirmative action as preferential treatment is the position they take concerning efforts to prohibit such treatment. The supporters of affirmative action fight very hard against any ballot initiative, legislative action or judicial decision that forbids racial preference. They contend that to ban preferential treatment based on race means the end of affirmative action based on race. This contention says it all. It demonstrates that the supporters of affirmative action actually agree with its opponents, that it is indeed preferential treatment.

The motive for obscuring the nature of affirmative action is powerful. Its proponents fear that what they firmly hold to be right would, if its preferential character were clear, be rejected by white Americans. But if their cause has a claim on justice, let it be argued on its merits. Only thus can a worthwhile national dialogue on race proceed. [return to table of contents]


(Comment posted online 12/27/99 in a Chronicle of Higher Education Colloquy
of the same title, reprinted with permission.)

Bill Goggin (7/7/99) begins his 10-point contribution with an important question: Do tests like the SAT measure (a) innate ability, (b) aptitude for learning, or (c) acquired skills and knowledge? He chooses (c), not (a) or (b). I say, all of the above.

Mr. Goggin fails to see past the content of the SAT. To be sure, its questions test skills and knowledge, such as reading comprehension and vocabulary. But the skills and knowledge attained by age 17 are the result of a dozen years of reading, studying, calculating, writing and abstract thinking. The greater oneís aptitude for these activities, the more knowledge and skill will be gained by performing them. Thus aptitude for learning is measured by a good test of the knowledge and skills that have been learned. Moreover, a person with greater innate capacity for these activities is more likely to develop a greater aptitude for them. Thus the test measures (c) directly, and (b) and (a) through (c).

Next, Mr. Goggin asks whether performance on such tests is "affected by a studentís social and economic background, life experiences, and previous academic preparation." His answer is yes, which is true as far as it goes. But he overlooks genes, a major contributor. People enter the world with different kinds and degrees of talent. Their underlying potential for verbal and mathematical learning and reasoning varies enormously. Although the genetic contribution to the racial gaps in test scores is uncertain, psychometricians agree that genes are a primary cause of the tremendous individual variance within races.

Roger Clegg and Lenore Ostrowsky, in their background piece, assert that standardized tests are "the single most reliable predictor of academic success." On the contrary, Bob Schaeffer (7/1/99) maintains that "high school record has the strongest correlation with first year college grades." No one in the colloquy thus far has provided authority for either view.

I checked the website of the College Board (, the outfit responsible for the SAT. It states that high school grades are the best single predictor of college grades, with an average correlation of .54 on a scale of 0 to 1. The SAT is a close second: the correlation between oneís combined verbal and math scores and college GPA is .52.

Notice that the Board does not confine the predictive power of SAT scores to first year college grades. Nor do William Bowen and Derek Bok in The Shape of the River, their acclaimed study of admissions policies in 28 selective colleges. They found that SAT scores were strong predictors of grades throughout a studentís undergraduate career, and also of the probability of earning a graduate degree.

Mr. Schaeffer also writes that "no single factor" explains "much more than a quarter of the total variance" in college grades. This statement is roughly confirmed by the College Board's figures. The degree of explanation of the variance is quantified by squaring the correlation. If the correlation = .54, the correlation squared = .29 or 29%. Thus, high school grades explain 29% of the variance in college grades. A correlation of .54 or .52 is clearly no guarantee. Many students with higher (lower) grades in high school will get lower (higher) grades in college. And the same goes for test scores. Moreover, you canít double your predictive power by using both grades and scores, since they are already largely correlated with each other. According to the Board, if you combine the two, their correlation with college grades is .61. This is very powerful, as predictors go in social science, but it still explains only 37% of the variance.

Thus, colleges have excellent reasons for considering both grades and scores, and excellent reasons for looking at additional indicators of student promise.

Mary Fritz (7/6/99) writes that standardized admissions tests "are known to be culturally biased." She cites no authority for this, nor have any of her successors in the colloquy. By biased, presumably she means that the cultural content of the questions favors whites, thereby producing scores that make minorities appear less able than they are. If she is right, in comparison with white students, the SAT scores of black students would underpredict how well they do in college. But in fact the reverse is true. Bowen and Bok, in the study cited above, found that SAT scores greatly overpredicted black college grades. Blacks averaged the same grades as whites whose combined SATs were 300 points lower.

Ms. Fritz also espouses the view that a test is discriminatory when underrepresented minorities average lower scores than whites. This view confuses two usages of the term, discrimination. If the members of any group (blacks, Presbyterians, left-handers, soccer moms, businessmen, adolescents, redheads) score differently on a test, researchers say that the test discriminates between that group and others. The test treats that group differently by giving it a different average score. But the redheads are treated differently by the test because their performance is different, not because they are redheads.

Treating people differently because of differences in their performance is not immoral; on the contrary, it is essential to civilization. When the American people outlawed racial discrimination as morally wrong (in the Civil Rights Act of 1964 and other state and federal anti-discrimination legislation), they meant to ban difference in treatment based on individual differences in race, not difference in treatment based on individual differences in performance.

The US Department of Educationís Office of Civil Rights seeks the opposite. It wants selective colleges to increase the number admitted from certain racial groups by reducing the use of tests on which these groups do less well. To reach a goal that discriminates based on race, colleges are pressed to abandon or de-emphasize tests that discriminate based on performance. [return to table of contents]

(Comment posted online 12/6/99 in a Chronicle Of Higher Education Colloquy
entitled "Where is the Debate on Affirmative Action in Higher Education Headed?"
Reprinted with permission.)

I believe that racial preferences in college admissions do great harm, as set forth below. Would advocates of such preferences, who read this colloquium, be willing to consider these costs and to say whether they think them unimportant, or important but outweighed by the benefits of race-based admissions?

1. The national rule prohibiting racial discrimination has been suspended in an important area of American life. (By Ďracial discriminationí I mean Ďa difference in treatment or favor based on race or ethnicity.í) This rule is the best known defense against the historical tendency of racial or ethnic favoritism to produce racial or ethnic partisanship, prejudice, hatred, injustice, oppression and war.

2. The moral authority of this rule in other areas has been undermined. By the example of our leading colleges and universities, blacks and Hispanics are taught that discrimination in their behalf is not only permissible, but praiseworthy, a lesson they increasingly feel free to apply in their own conduct. Forty years ago those who favored racial preference were called racists; nowadays the people most likely to be attacked with this label are not the practitioners of racial preference but its opponents.

3. Installed first for the admission of students and then for the employment of faculty and staff, racial preference has invaded course content. In literature, history and sociology considerations of racial representation and balance influence which authors are assigned and which people and problems are studied.

4. When the less able displace the more able, the quality of work necessarily declines, in the first year of college on up to the top ranks of the professions, business and government. Human problems and needs require the best hands we can find, with the best training we can give. Individuals involved in the displacement also suffer, whether blocked from doing what they can, or propelled into doing what they cannot.

The pretense that no substantial discrimination by race or sacrifice of quality occurs under affirmative action has spawned decades of evasion, equivocation and duplicity by its academic sponsors. [return to table of contents]


(October 1999)

Backers of UVa's racial admissions policy have recently brought their case to the people of Charlottesville through our City Council. May I, as a resident of the city and a critic of the policy, return the favor by speaking to the university community via the Cavalier Daily [the campus newspaper at the University of Virginia]?

Your contributors have submitted cogent arguments against treating UVa applicants unequally based on their race. I wish President Casteen had paid more attention to such objections before writing his public letter of Sept. 30, on "Equal Opportunity in Admissions."

Although his letter does not explicitly take sides, it finds only reason to praise and none to blame the present practice. It would have greater force if it showed some understanding of the facts and principles that bring many of us to a contrary view.

Crucial information about the admissions process has (unwillingly) been released by the university. The Center for Equal Opportunity, a private agency critical of race-based affirmative action, tabulated first-year admissions for 1996. The Center found that the admission rate for black applicants (48%) was almost twice the rate for whites (25%), a fact that UVa does not dispute.

These figures strongly suggest racial preference, but are not conclusive, unless one knows something about the relative qualifications of the thousands who applied. Based on data for each student, Dr. Robert Lerner, the primary author of the Center report, was able to calculate the different probabilities of admission for white, black, Asian and Hispanic applicants with the same grades and test scores.

For example, the average 1996 applicant stood at the 88th percentile of his/her high-school class, and scored 1276 on the SAT. The probability of admission for applicants with these qualifications was: blacks - 89%, Hispanics - 24%, Asians - 17%, and whites - 16%. Thus, a black with identical grades and scores had more than five times the chance of admission of a white or Asian applicant.

Is this 'equal opportunity'? The standard meaning of that term in a racial context, derived in part from the US Civil Rights Act of 1964, is an equal chance of selection for equally qualified people, regardless of their racial identity.

Whether the university's policy is right or wrong, to label it "equal opportunity" is Orwellian. The reality of unequal opportunity is concealed and misrepresented by giving it the name of its contrary.

President Casteen's letter asserts that the courts "have left the universities with no guidance on what they ought to do, must do or can do." This statement contains a seed of truth in a pod of falsity. He is right that no one can be sure how the Supreme Court, under President Clinton or his successor, will apply its understanding of the Fourteenth Amendment's Equal Protection Clause to the facts at UVa. But he is wrong to disregard certain principles of constitutional law, which define this understanding and offer extensive guidance to any admissions office that cares to listen.

The Supreme Court has consistently held that racial discrimination by a State or agency thereof, no matter which persons or groups it favors, is presumably unconstitutional, as a violation of the Equal Protection Clause. The presumption can be overcome, but only if the discrimination serves a compelling interest that cannot be advanced by other means.

The Casteen letter also states that "the argument about 'using race' adds little to the discussion." This, from the chief executive of an institution whose use of race in admissions is not peripheral, trivial or insignificant, but gross! This is scofflaw language, concerning perhaps the greatest human achievement of the 20th century: the widespread legal and moral prohibition of racial discrimination.

Apparently the administration and the faculty senate would love to continue UVa's racial admissions policy, if the courts will let them. But they cannot persuade us that the policy is just, unless they acknowledge the degree of preference conferred, and refute the formidable objections raised by their critics.[return to table of contents]


Published in slightly different versions
Dec. 16, 2003 in the National Association of Scholars Online Forum
Jan. 30, 2004 in The Flat Hat, College of William and Mary campus newspaper

It's not every night that one receives an email from a college president, especially an offer to help. I had written President Timothy Sullivan of the College of William and Mary, concerning his administration's response to a controversial student protest, as reported in the campus newspaper.

The "Sons of Liberty," a new, Libertarian, student organization, tried to hold an "Affirmative Action Bake Sale." It was intended to symbolize racial discrimination in college admissions, by racial discrimination in the price of cookies. Whites had to pay $1 for four cookies; Asians, 75c; blacks and Hispanics, 50c; American Indians, 25c. A representative of the administration told the students they could sell the cookies, but only if they stopped selling them at different prices based on race. Their message censored, the students disbanded. Afterwards, they probably wished they had said something like: if W&M will stop racial discrimination in admissions, we'd be delighted to stop it in cookie sales; indeed, we'd throw a party and give them away free! (The zinging retorts always arrive after their targets have left.)

When I learned about this, I wrote to President Sullivan at 11 pm, 12 December 2003, as follows:

 Shame on the College for shutting down a student bake sale protesting affirmative action programs that discriminate based on race. People who believe that such programs are good for America should say why. Their reasons for supporting race-based affirmative action must be pretty feeble, if they respond to opposition by trying to silence it. [As with the other quotes, this is the complete message.]  

His reply, at 12:45 am, 13 December 2003:

 Some fool has sent me an e-mail and signed your name to it. You should do what you can to discover the identity of the person. He or she is doing real harm to your reputation. I will help you if I can.  

You can imagine my surprise! I have never been called a fool in a message pretending the fool was somebody else. Perhaps my correspondent was responding to a bad week at the office, rather than to me. So I sent a second message, at 6 pm, 13 December 2003:

 I notice that you wrote in the middle of the night, after perhaps a trying week. Would you like, in a calmer mood, to revise your email to me? 

He replied at 10:42 pm, 13 December 2003:

 No. Tim Sullivan - You can quote me. 

What to make of this response? One may argue that it is perfectly consistent: shut down student criticism of school policy, strike out at a citizen's criticism of the shutdown. But there is also President Sullivan's offer to help me if he can.

Let me take him up on that. It would be a great help to assure the students of the college he leads that the right of opponents of racial preference to speak out is just as precious as the right of supporters. And that this right includes not only the freedom to state opinions and to give reasons, but also to dramatize crucial facts. There is no more crucial fact about affirmative-action admissions than the degree of racial discrimination they involve.

In this regard, President Sullivan could initiate a policy of full disclosure. What proportion of applicants owe their acceptance to racial or ethnic preference? How does the chance of admission of white applicants compare with that of Asian, black, Hispanic or Native Americans with the same academic credentials? The relative prices in the bake sale were guesses, in some cases apparently quite mistaken. (Estimates for W&M, as well as other Virginia schools, are online at and

The administration could replace student guesses or obsever estimates with authoritative facts. If the College of William and Mary sincerely believes that the racial discrimination it practices is good for America, it should be willing to disclose -- indeed, to proclaim -- its extent. [return to table of contents]