November 17, 2003,
Want to get rid of affirmative action? There's a lot you can do to help. But didn't we lose that battle? Didn't the Supreme Court's decisions in the University of Michigan cases hand the universities victory? Not really. The Michigan decisions were a classic attempt by Justice Sandra Day O'Connor to drag a polarizing cultural issue onto muddy middle ground. They simply set the terms for our ongoing battle over preferences. We opponents of affirmative action have only lost that battle if we think we've lost. Look closely at the Michigan decisions and you'll see any number of ways in which we can still pare back and in many cases even end racial preferences.
Of course, Grutter v. Bollinger was a blow. I was certainly discouraged by Grutter's endorsement of "diversity" as a compelling state interest. Affirmative action is a top priority issue for me. But I must admit that after the Michigan decisions, the battle seemed lost and I didn't have the heart to look into the matter any further. I was wrong.
Sandra Day O'Connor doesn't like principled either/ors. When you think about it, the only way for her to compromise on this issue was to affirm "diversity" as a compelling state interest, then surround that affirmation with so many restrictions that diversity's scope would in practice be limited. The alternative would have been to eliminate preferences altogether. But that would have given one side in this polarizing national dispute too unequivocal a victory to suit O'Connor.
AN AFFIRMATIVE CONSERVATIVE STRATEGYUsing the provisions we were given by O'Connor and the Court, we can sharply pare back preferences. But here's the catch: We can only do this if we organize and litigate. If conservatives throw up their hands and surrender, under the mistaken impression that this decision has settled the affirmative-action question in favor of the universities, then we really will have lost. Actually, if opponents of affirmative action can just get over their post-Michigan shock, there is considerable reason for hope. That's because we have today what we lacked in the years following Bakke an array of organizations primed to level a legal and political assault on affirmative action.
To see the reasons for hope, you have to understand what happened after the Bakke decision of 1978. Bakke was no clear-cut victory for affirmative action. True, Justice Powell's tie-breaking opinion in that case did introduce the notion of "diversity" as a justification for preferences. Yet Powell was clear that race could only be considered as one factor among many. Colleges could not impose official or even de facto quotas. Colleges could not make race so important that it would outweigh all other factors.
Troubling as Powell's decision was, it was not nearly as bad as what happened next. Using Powell's notion of diversity as a cover, colleges and universities proceeded systematically to violate Powell's restrictions on affirmative action. While claiming to be treating race as just one factor among many, colleges set up a system of de jure and de facto quotas. So universities took the Court's attempt to split the difference between two sides and turned it into a clear-cut victory for affirmative action. To do this, our colleges and universities had to violate the law. How'd they get away with that? Simple. There was no one to call them to account. In the decade following Bakke, there was no network of conservative organizations prepared to litigate affirmative-action issues.
Fortunately, in 1988, ten years after the Bakke decision, the Center for Individual Rights was founded. CIR quickly became the legal arm of the campaign against preferences. Its greatest victory was Hopwood v. Texas, which outlawed affirmative action in college admissions in Texas, and was upheld by the U.S. Supreme Court in 1996. Building on its success in Hopwood, CIR carefully brought the Michigan cases through state courts, and eventually before the Supreme Court. By that time, a combination of court cases, ballot initiatives, and legislative action had pared back or eliminated affirmative action in large sections of the country.
CAMPUS BATTLEGROUNDWhat changed was that opponents of affirmative action (a clear majority of the American people) had gotten their act together and taken the fight to the universities. Wherever possible, universities continued to violate Bakke's restrictions. Increasingly, however, they were getting called on it. More and more, where universities resorted to de facto quotas, those programs were challenged and banned. At the same time, the very notion of affirmative action was being repudiated through political action.
The hope in the Michigan cases was that the Supreme Court would decisively reject the very idea of preferences. After all, Justice Powell's tie-breaking opinion had not been joined by a single other justice. Powell's "diversity" idea had simply been seized upon by universities seeking a cover for their de facto quotas. If the Supreme Court as a whole had rejected Powell's diversity notion this past summer, preferences in college admissions would have been dead.
What the Court did instead was to affirm Powell's views on diversity. But it affirmed and even expanded the good side of Powell's views, as well as the bad. The Court rejected Michigan's pleas to allow the achieving of diversity through quotas. Diversity still has to be treated as only one of many factors in a highly individualized review of each applicant. Racial diversity by itself cannot be given decisive importance.
GRUTTER FAILUREThat is our ace in the hole. The truth is, colleges and universities are incapable of running their preference programs in conformity with Grutter v. Bollinger. The achievement gaps that have to be overcome are so large that race simply has to be turned into a decisive factor a de facto quota if colleges are to maintain the levels of minority enrollment that they want. No less than in the years after Bakke, colleges will be compelled to use an ambiguous Supreme Court decision as a cover for their illegal quota systems. But in 1978, there was no Center for Individual Rights to haul the offending colleges into court. Today, CIR is chomping at the bit to do just that.
So it's true that the Supreme Court affirmed Justice Powell's doctrine of diversity. That's a very unfortunate thing. But what opponents of affirmative action need to understand is that the Court also upheld and even increased the restrictions on the use of diversity. In his dissent in Grutter, Justice Scalia pointed out a virtual road map for future legal challenges to college-admissions preferences. In effect, Scalia was telling opponents of affirmative action that there are a whole series of avenues still open to us for restricting preferences.
If you don't believe me, consider the article on the future of campus affirmative action that appeared in The Chronicle of Higher Education at the end of October. The Chronicle made it clear that, instead of celebrating their victory in Grutter, universities are now worried about meeting the decision's limitations on the scope of diversity. It's fairly clear from Grutter, for example, that race-exclusive programs scholarships are now illegal. Organizations like the Center for Equal Opportunity and the American Civil Rights Institute are now aggressively pressing universities to end such programs with real success. In a front-page story on November 15, the Washington Post reported that, under pressure from conservative groups-and from the Michigan rulings themselves many colleges are now dropping race-exclusive recruiting programs.
But the most telling tidbit in that Chronicle article was an admission dropped in passing. According to the Chronicle, Angelo N. Ancheta, legal director of the Civil Rights Project (a Harvard-based organization that plays a key role in defending affirmative action), now takes care to advise universities about the dangers of point systems. It was Michigan's undergraduate point system (which awarded more points for being black than for a perfect score on the SAT) that led to CIR's victory in Gratz v. Bollinger. Here's what Ancheta was quoted as telling the University of Chicago: "If you advertise your point system, you are vulnerable to challenge."
UNTRUTH IN ADVERTISINGGet it? "If you advertise your point system, you are vulnerable to challenge." In other words, make sure to keep your quota system secret. Get caught, and CIR will have you where it wants you. This is close to an open admission that colleges are already violating and must continue to violate the law of the land. True, outright abolition of affirmative action last summer would have been better. But it's obvious that if we can just expose the endemic defiance of the law in college affirmative-action programs we can still throw a wrench into this system. If conservative public-interest law firms are smart, they'll avoid cases that simply trim around the edges and pick the handful that expose the fundamental incoherence of Grutter.
What you're going to see sometime in the next few years is another high-profile affirmative-action case. The Center for Individual Rights is going to catch some university flagrantly violating the Court's fairly restrictive legal standards for affirmative action. It's probably going to be a large school, because large schools find it difficult to give each applicant individual consideration. In order to fill up their minority quotas, large schools, whether openly or not, tend to cut corners and operate on some sort of de facto or de jure point system. Since Michigan is a public university, CIR was able to gain access to the details of its point system. The next case may come from a public university, but it may also emerge at a private university, after some courageous faculty member or administrator comes forward to expose that university's violation of the law. (Any whistle-blowers out there should feel free to contact the Center for Individual Rights.)
Once CIR has a case like that, we'll have another chance to pare back affirmative action. In the best case scenario, and depending on the future composition of the Court, such a case might someday lead to a reversal of Grutter v. Bollinger. But even short of that, a high-profile case exposing the ongoing violation of the Court's restrictive policy on affirmative action would make it very difficult for universities to sustain their hidden quotas.
A case like that could also help jump start statewide initiative campaigns to outlaw affirmative action. What we've learned since the founding of CIR in 1988 is that high-profile legal cases feed into initiatives, and vice versa. So to regain momentum in the affirmative-action battle, we need to litigate.
True, it may be a few years before the right high-profile case emerges. But much can be done before then. For example, colleges can be made to pay heavily when they violate the Court's existing constraints on preferences. Since Michigan lost its undergraduate-admissions case, it is now liable to pay damages to every non-minority applicants it would have accepted were it not for its preference program. If CIR prosecutes and/or negotiates a damage settlement, a signal will go out that violating the Court's restrictive interpretation of preferences can be very costly indeed. And remember, as they operate now, most university preference programs depend on the systematic violation of both Bakke and Grutter.
And there's even more good news. The Grutter decision applies to higher education only. The Center for Individual Rights has two very strong cases pending one against preferences in contracting, and one against preferences in government employment. It's impossible to tell for sure, but there's every chance that Justice O'Connor will be eager to show in those cases that her stated opposition to preferences in these contexts still holds. So major victories may still be in the offing.
What can you do to help? First off don't give up! We're in this fight for the long haul, and there are plenty of ways to win. If you're so inclined, consider making a contribution to the Center for Individual Rights. What they need right now is a war chest. That way, they can grab the higher education community's feet and hold them to the fire. This is a fight we can win if only we see and believe it.
Stanley Kurtz, an NRO contributing editor, is a fellow at the Hoover Institution.