Jewish World Review Sept. 11, 2001 / 22 Elul, 5761
But now courts and voters around the country seem to be opening their eyes. In 1996, the Fifth Circuit federal appeals court tossed out quotas and preferences in Texas. That same year, Californians voted to out-
law quotas and preferences by state colleges and universities. Last month, the 11th Circuit outlawed the University of Georgia's use of racial preferences. Federal trial courts split over the University of Michigan's reliance on racial preferences; one judge allowed it for the undergraduate school; another banned it for law school. Those cases will likely end up in the Supreme Court.
Under Supreme Court decisions from the 1980s and 1990s, any racial classification is subject to "strict scrutiny": It must be narrowly tailored to serve a compelling government interest. The interest the universities of Georgia and Michigan asserted was "diversity." But, as the 11th Circuit opinion pointed out, only one justice of the nine in Bakke allowed racial preferences for diversity; four other justices permitted quotas and preferences to remedy past discrimination. But that is not at issue here: Georgia was ruled to have remedied past discrimination in 1989, and Michigan (except for quotas) has never discriminated by race.
Diversity. "Diversity," meanwhile, is a slender reed. One Detroit judge ruled that diversity was a compelling interest and that Michigan's undergraduate admissions system was OK because it no longer relied on quotas. But it plainly uses racial preference, which legally is the same thing. The other Detroit judge rejected the diversity argument. The 11th Circuit argued that Georgia's racial preference "does not even come close" to being narrowly tailored to achieve diversity. It's obvious that the universities are dissembling, monkeying with different procedures whose single purpose is to raise the percentage of black students, and that they are utterly uninterested in any other form of diversity. It's questionable whether the U.S. Supreme Court will want to endorse racial discrimination in such flimsy disguise.
Overturning quotas will unleash a national firestorm. It will be alleged, as it was in California, that colleges will return to the era of Jim Crow, that selective colleges will be lily white. But the California experience shows that such complaints are bogus. Abolishing racial quotas and preferences will not reduce the number of blacks and Hispanics in higher education. What it will do is to reduce their numbers in the most selective schools. In California, the percentages of blacks and Hispanics since 1996 have dropped at Berkeley and UCLA but have risen at other University of California campuses, two of which are among U.S. News's top 50 national universities. And note that students admitted under quotas and preferences are much more likely than others to drop out. Eliminating quotas, as scholars Stephan and Abigail Thernstrom point out, means that blacks and Hispanics will be in schools where they are more likely to graduate. All of us who want to see minorities advance should be more interested in increasing graduations than admissions.
The strongest backing for quotas comes from selective universities. They have an emotional investment in the subject. Quotas and preferences allow these administrators to preen themselves on how generous they are to let in applicants who would otherwise not cut it. But in the process, every black and Hispanic student is stigmatized as someone who doesn't quite belong-and wouldn't have made it otherwise. Many such students, understandably recoiling from this condescension, set themselves apart in minority dormitories and ethnic studies departments. Speech codes are promulgated to penalize any critics of quotas and preferences. Administrators deny they are discriminating by race when they are actually busy doing so. The result is the systematic intellectual corruption of the leaders of our most intellectually distinguished institutions.
There is a better way. The University of California-Riverside sent teachers to local public schools to help minority students learn and score well enough on tests to qualify on the same basis as anyone else. Win, win: no more unconstitutional racial discrimination, and more black and Hispanic students who are really learning. Maybe others should stop waiting for the Supreme Court, and get started