Monday, June 23, 2003
I'm not much of a fan of affirmative action, but I can't get myself particularly worked up about the latest Supreme Court decision. Why? three reasons.
First, I know that the practical likely alternative to affirmative action in higher education is a general lowering of standards. There is, after all, no reason why colleges have to admit on the basis of scores or grades. They could admit, for example, the top 10% of every graduating class in the state, as the University of Texas system does since that state prohibited race-based quotas. Or we could see secondary schools reduce objective criteria in assigning grades. So it's not obvious to me that victory over affirmative action is a victory for academic standards.
Second, I know that there is a great deal of bad faith in discussions of affirmative action. Liberals like affirmative action in many cases because they secretly believe that black students can't possibly measure up. (I know that's a crude and gross generalization, but I've had too many conversations that confirm it.) Conservatives hate affirmative action for various reasons, some noble and some less so, but in general they refuse the answer the question of what the consequences will be if allocating college admissions strictly by test scores results in racial stratification in education. So I don't think either side debates the issue honestly.
But third, and most importantly, I think we are scrutinizing this whole question too strictly. The reason we have strict scrutiny for racial classifications under the Equal Protection clause of the 14th Amendment is that this country had a history of legal white supremacy. To conclude from this that the Constitution is "color-blind" is a considerable stretch, and quite far from strict constructionism (as any honest reading of the ratification debates will attest to). Banning affirmative action would be yet more micromanagement by the Feds of racial matters, something I think we already have too much of. In taking this tack I am following the lead of Jeffrey Rosen, the court watcher for The New Republic.
Of course, there are nuances. The cases at hand involved public universities; perhaps they should operate under different rules. But in practice, most private education in this country gets Federal monetary support. I think preserving the independence of academic institutions is worth a whole lot, and that includes the independence to pursue divisive, wrong-headed social policy.
And of course, the decision, written by Justice O'Connor, does not either give a blank check to pursue discriminatory policies nor does it inaugurate a colorblind Constitution. Rather, it lets Justice O'Connor decide when policies are too discriminatory and when they are OK. Chalk up one more for the Imperial Judiciary.
No one has a right to a spot in college. Colleges can take all kinds of factors into consideration of candidates, including athletic ability, how much the candidate's father gave to the school, and how many Chinese cellists were admitted last year. The most competitive schools reject hundreds of well-qualified appliants every year in favor of candidates who may not be top-scorers but who have something else going for them that makes them stand out, and that, thrown together with the other candidates, make for a more diverse class. I don't see that it's the government's business to say that, if they want to make sure the incoming class is at least 8% black, they have to come up with dubious roundabout ways of getting there. I'd rather there be more diverse kinds of schools - some with open admissions and some with highly restrictive admissions; some that admit solely on scores and some that don't use the SAT at all; some that are single-sex and some that have co-ed bathrooms; some that are religiously affiliated and take their religious mission seriously and some that are avowedly secular - than to enforce uniform admissions rules in the name of justice. Virginia should be allowed to sponsor a public, single-sex military academy. And Michigan should be allowed to sponsor a school that seeks a minimum percentage black representation in the incoming class. And let a thousand flowers bloom.
I think conservatives should think hard about whether they really want to encourage the Court to extend its equal-protection jurisprudence. Affirmative action is the kind of policy that should be thrashed out in the political arena, not settled in the courts. If it is bad policy (and I think it often is) it should be defeated on the merits (as it frequently is when it goes to the polls).