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Bush's Affirmative Action Briefs by Steve Sailer UPI, January 17, 2003 |
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This was written in the hours after the Bush Administration posted their briefs to the Supreme Court in the landmark Grutter & Gratz v. U. of Michigan racial quotas case.
A surprising debate is raging among conservative advocates of colorblind laws over whether President Bush's attack on the University of Michigan's admissions system is the fulfillment of their cause, or its betrayal. Just before a midnight Thursday deadline, the White House submitted to the U.S. Supreme Court two "friend of the court" briefs in the twin reverse discrimination cases of Grutter and Gratz. In the small hours of Friday morning, private e-mail messages circulated among leading activists and intellectuals in the movement against racial preferences, arguing over the briefs' implications. Many agreed with the mainstream media that the briefs represent a major victory in their fight against affirmative action. The optimists felt that getting a popular president formally on the record as vigorously attacking racial quotas by name was a big win. They were quite pleased by the principles enunciated by the White House against the use of race in choosing students. The administration's actions came as a particular relief to them. With December's Trent Lott uproar having put the Republican Party's racial attitudes under the microscope, they had feared the president might punt entirely on filing a brief. They had worried that if the administration walked away, that would send a negative message to Justice Sandra Day O'Connor, whose vote is expected to be crucial. The optimists were pleased that the White House political brain trust, which has been trying to boost the GOP's minority appeal, unleashed Solicitor General Theodore Olson, a longtime enemy of reverse discrimination, to strongly denounce the university's method for selecting students. Olson contended they were an "impermissible quota system" that was "unconstitutional." The word "quota" has an important legal meaning. The 1978 Bakke decision, the Supreme Court's last college-admissions case, banned state universities from using "rigid quotas," but permitted "flexible goals." Many universities responded by renaming their numerical targets for minority enrollment from "quotas" to "goals." Little else, however, changed about their reverse discrimination methods, at least until the 1990s when new challenges arose in California, Texas and Florida. Attempting to revive Bakke, Olson charged that the university's "race-based pursuit of a predetermined 'critical mass' is not meaningfully different from the strict numerical quotas invalidated in Bakke ... As a result of these race-based efforts, the Law School has been able to admit the desired 'critical mass' numbers of selected minority groups with a remarkable degree of consistency, enrolling between 44 and 47 African-American, Native-American, and Hispanic students each year from 1995-1998." The pessimists among the opponents of affirmative actions, however, were troubled that the briefs seemingly advocated equality of result, rather than the equality of opportunity that they back. They objected to the White House mimicking the university's basic argument by stating that prestigious state colleges should "ensure that ... student bodies are educationally diverse and broadly representative of the public." In contrast, colorblind methods of selecting the highest potential applicants for elite universities have typically generated unrepresentative student bodies. Asians and whites have been disproportionately common, while blacks and Hispanics were disproportionately rare. The administration did not advocate a "let the chips fall where they may" philosophy about racial makeup. Instead, it argued the University of Michigan possessed other ways to reach the same racial results without using policies that specifically referred to race. "Respondent's use of race-based admissions criteria is not justified in light of the ample race neutral alternatives," Olson summarized. In fact, the White House paradoxically justified the replacement methods it proposed by their ability to replicate the levels of minority admissions achieved under the racial quotas it denounced. The solicitor general argued: "The district court's conclusion that 'if race were not taken into account, the probability of acceptance for minority applicants would be cut dramatically' is plainly mistaken. ... Three of the Nation's most populous States, Texas, Florida, and California, have adopted race-neutral admissions standards for their public universities, and have maintained, or in some instances increased, minority enrollment under those race-neutral standards." One such technique is granting admission to all applicants who rank in the top tier of their high school graduating classes. Because many minority students attend de facto segregated schools where competition for high grades is relatively weak, this has proven fairly effective in restoring minority admissions levels. The cynics among the conservatives consider these techniques to be simply "quotas in disguise." The administration also suggested, "In addition, if the University genuinely seeks candidates with diverse experiences and viewpoints, it can focus on numerous race-neutral factors including a history of overcoming disadvantage, geographic origin, socioeconomic status, challenging living or family situations ... and individual outlook as reflected by essays." The White House is endorsing an essay recently required from applicants to the University of California. (That enormous system has been banned officially from using race in selecting its students since 1995.) In it, applicants write about "life challenges" they have overcome. UCLA, for example, then gives extra points if they come from high-crime neighborhoods or have survived being shot. The conservatives distrustful of the administration believe these essays merely serve to give admissions committees blatant clues about the race of the applicants, thus enabling them to admit less qualified minorities. In the briefs, the White House defended these technically "race-neutral" methods by recounting how close they have come to reproducing the results of the quotas they replaced. For example, Olson noted, "In the last year before the effective date of (Florida's) new race-neutral policy (1999-2000), the percentage of entering minority students enrolled in Florida's undergraduate institutions was 36.6 percent. Two years later that percentage was 36.68 percent." Similarly, at the University of California, "(T)he subtotal of the admitted freshmen students that were 'underrepresented minorities' in 1997, the last year race was considered in admissions, was 18.8 percent, whereas in 2002, under the race-neutral policy, that figure is 19.1percent." The conservative skeptics suggested that if the president's preferred methods wind up with the very same results as the quotas they replaced, then they are just another form of racial quota. Ultimately, the debate exposes a disturbing question that many conservative opponents of affirmative action have not always been eager to think about: Would honestly eliminating racial preferences require significantly rolling back the numbers of blacks and Hispanics in exclusive state universities? The administration opposes that outcome. In fact, on Wednesday, Bush said: "We should not be satisfied with the current numbers of minorities on Americans college campuses. Much progress has been made; much more is needed." In contrast, some of the more pessimistic conservatives argue that if the principle of equal treatment under the law is no longer to be flouted, a sizable minority cutback would be unavoidable. Others felt that this was not the time for such a discussion.
Steve Sailer (www.iSteve.com) is a columnist for VDARE.com and the film critic for The American Conservative.
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