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February 28, 2003 -- A state university uses racial criteria in choosing candidates for admission. It has been doing this for years, as have similar institutions. By now, the practice is deeply rooted in the university's customs, vested interests, and bureaucratic inertia. It has the backing of local businesses who hire the graduates and use racial criteria themselves in personnel decisions. And it is defended by ideologues who see the world in terms of racial categories instead of individuals.

But an idealistic civil rights group mounts a challenge. It opposes the practice as an unjust form of discrimination and argues that race-conscious policies should be prohibited at institutions receiving government subsidies. It sues the university on behalf of applicants who were denied admission because they did not belong to the right race. The case wends its way through the court system, finally reaching the Supreme Court. After vacillating for months, the White House weighs in on the side of the victims.

Mississippi in the 1960s? No, Michigan today.

The Center for Individual Rights (CIR), a public-interest law firm in Washington, D.C., has brought two suits against the University of Michigan for its use of race in selecting candidates for admission to its undergraduate program and law school, respectively. The victims were whites turned down despite qualifications that were higher than those of minorities who were accepted. The Supreme Court will hear arguments and rule on these cases some time this spring. The Bush administration is filing a brief urging the court to strike down the university's practice as unconstitutional.

Affirmative action, to be sure, is not the same as segregation. Affirmative action policies are supposed to help blacks, not exclude them. And while that entails "reverse" discrimination against white students, the latter are obviously not excluded entirely, as blacks were under forced segregation in certain southern states. Nevertheless, a school has a relatively fixed number of students it can admit each year, so for every admission on racial grounds there is an equal and opposite racial exclusion. Nor is race a deciding factor only between candidates who are otherwise equally qualified. That soothing fiction has long since been abandoned; admissions officers put a heavy thumb on the scales in order to increase minority enrollment.

In the admissions process at Michigan's undergraduate college, applicants were given points for relevant characteristics: 60 points for a B average in high school, 80 for an A average; 10 points for a midrange ACT or SAT score, 12 for a score in the top range. Applicants could get additional points for nonacademic characteristics: 10 for being a Michigan resident, 4 for having an alumni parent, 3 for writing an outstanding application essay. Race trumped all of those nonacademic factors. "Underrepresented Racial/Ethnic Minority Identification" was worth 20 points.

CIR's appeals-court brief of July 30, 2001, describes how the point system played out for Jennifer Gratz, the plaintiff in the case:

In the Fall 1995 term [for which Gratz applied], 46 underrepresented minorities applied with an adjusted grade point average…of 3.80 to 3.99 and ACT/SAT scores between 24-25 (ACT) or 1000-1090 (SAT), and all 46 received offers of admission….For that same combination of scores, which is where Jennifer Gratz's scores were located, 278 "Not Underrepresented Minorities" applied, and only 121 received offers of admission. (p. 19)

In defense of affirmative action, the university argues that this thumb on the scales is necessary to increase minority enrollment and ensure a diverse student body at the college. Its defense is supported not only by the civil rights establishment and President Bush's liberal Democratic opponents but also by many corporations. General Motors filed a brief supporting the university, as did a consortium of other large firms, including 3M, Abbott Laboratories, DuPont, Dow Chemical, General Mills, Eastman Kodak, Intel, Microsoft, Procter & Gamble, and Texaco. They argue that because of the increasingly diverse racial, ethnic, and cultural makeup of their workforce, they need to hire people who have learned how to deal with such diversity.

The term "diversity" is a code word for a specific legal defense of affirmative action. In the landmark Bakke decision of 1978, the Supreme Court prohibited the use of quotas in university admissions but left the door open to less heavy-handed uses of racial criteria—if they could be justified by a valid purpose. Advocates of affirmative action initially appealed to justice as their purpose: the policy was supposed to compensate women and minorities for past discrimination. This argument, of course, relies on an overtly collectivist standard of justice. People in the favored groups were to get benefits not because they themselves, as individuals, were victims of discrimination but because other people with the same race, sex, or ethnicity had been victims in the past. Similarly, whites who would otherwise have been admitted to the schools on their merits were turned away because of the sins of white males in the past.

The Supreme Court has essentially—and properly—rejected this rationale as a legal justification. Compensation for past wrongs is a valid basis for affirmative action only if there is a specific pattern of discrimination against the individuals in question (City of Richmond v. J.A. Croson Company, 1989). So advocates have turned to another rationale.

Race-conscious admissions, they argue, are necessary if a school is to have a diverse student body, and such diversity enhances the education that all students receive. In one of its briefs, for example, the University of Michigan claims that diversity "increases the intellectual vitality of its education, scholarship, service, and communal life."

The American Council of Education (ACE), a lobbyist for higher education, goes further in extolling the intellectual benefits of racial and ethnic diversity in a brief submitted to the district court:

Diversity contributes to the process of learning, on which the powers of reason depend…. Learning occurs when our model of the world is shaken by new facts, beliefs, and viewpoints….

The familiar is less valuable because it tends to reinforce preconception [sic]; the new and different are food for intellectual growth. Student diversity provides all learners opportunities to develop their intellects, by exposure to increasingly complex and nuanced models presented by their peers….

A campus or classroom occupied by students from various racial, ethnic, and other backgrounds exposes each to a broader array of vantage points from which to view his or her own values and beliefs than does a classroom of like-minded students whose experiences, values, and beliefs are similar (pp. 9-10).

There is indeed every reason to believe that confrontation with opposing convictions and perspectives is a vital means of testing one's own views and enhancing the clarity and rigor of one's thinking. That is a staple of the liberal case for freedom of speech and thought, and it certainly applies to education as well. But the ACE's argument rests on the further assumption that a person's race or ethnicity is the primary determinant of his ideas. That is a racist assumption, no different in kind from the racism once used to justify segregation.

Some defenders of affirmative action seem to recognize as much, shying away from the claim that members of a given racial or ethnic minority can be expected to have the same views. But doesn't that undermine the diversity argument for race-conscious admissions? Here's how one brief, submitted by General Motors, deals with the problem: "racial and cultural experiences" are "likely to affect an individual's views," but "to the extent that they do not, racial diversity may contribute to students' educational experience precisely by confirming that race does not dictate viewpoint" (footnote 11). Heads we win, tails you lose.

In the mouths of affirmative action's defenders, moreover, the appeal to intellectual diversity is utter hypocrisy. If universities really were committed to such diversity, they could achieve it directly by enrolling students with a wide range of political, religious, and philosophical views. To the extent that socioeconomic background does influence outlook—and it is a very limited extent—they would consider a much wider range of factors, not just skin color. As John H. McWhorter, a linguistics professor at the University of California, Berkeley, who has written extensively about race policies, points out: "Mormons, paraplegics, people from Alaska, lesbians, Ayn Randians, and poor whites exert little pull on the heartstrings of admissions committees so committed to making college campuses 'look like America.' The diversity that counts is brown-skinned minorities, especially African Americans" ("The Campus Diversity Fraud," City Journal, Winter 2002).

If universities were committed to intellectual diversity, they would also make sure to promote and protect the expression of any and all views on campus. Under the reign of political correctness, however, most universities have sharply curtailed such freedom. They have created speech codes that ban statements deemed "racist," "sexist," "homophobic," etc. They have imposed mandatory "diversity training" workshops in politically correct comportment. To see how widespread these violations of academic freedom are, one need only consult the Web site of the Foundation for Individual Rights in Education ( http://www.thefire.org/ ), an organization that has taken on hundreds of cases in which colleges and universities banned or restricted speech.

The sad fact is that academia has become more orthodox, less hospitable to genuine diversity of opinion, than almost any institution in America. A rabid Marxist would get a more open (and certainly more courteous) hearing in a suburban Republican enclave than a Republican would get in many humanities and social science classrooms today. Affirmative action sustains and is sustained by the identity politics of the cultural Left, whose agenda dominates many academic departments and administrations at top universities. The agenda is based on the view that an individual's identity is essentially a function of his race, class, and sex, and that such groups are engaged in ceaseless conflicts of oppression and resistance. Indeed, "diversity" is a code word, not only for a specific legal defense of affirmative action, but also for a broader effort to politicize higher education by making social activism, rather than learning and research, its primary goal.

In the circumstances, one has to side with the opponents of affirmative action and hope that the Supreme Court strikes it down.

It's unfortunate, however, that university admissions policy should be a matter for the courts in the first place, and that so much of the debate about the cultural trend of higher education has been focused on the legal standing of these policies. The real problem is not affirmative action per se, but the rationale used to justify it and the purpose it serves in a culture obsessed with class conflict. In a different context, institutions might well have valid reasons for adopting this practice.

Suppose that universities were still committed to their historic aims of learning and research. And suppose that they were not funded by government, so that neither the legislature nor the courts had the authority to regulate admissions procedures. As private, voluntary associations, using only private property, schools would be free to admit students on any criterion they chose. Admissions policies would depend on the choices of individuals and the operation of competition in the marketplace, not on a government's attempt to impose a particular outcome.

In a culture of rational individualism, on which a free society depends, we would expect universities to judge applicants as individuals, not as members of groups. One would expect them to select students on the basis of intelligence, motivation, level of preparation, and other characteristics related to the purpose of education. But a school cannot do so mechanically or passively. It cannot simply admit any qualified applicant who can pay on a first-come, first-served basis. Nor can it simply set its prices to clear the market, so that the demand for admission is no higher than the supply of seats. The reason is that the education it offers is obviously affected by the student body as a whole. Bright students allow teachers to move faster in class to cover more material, with benefits to every student in the class. Outside the classroom, students teach and challenge each other. And then of course there are the lifelong social benefits of acquaintances with the best and the brightest. So schools have a strong economic reason to select for talent. In other words, the product that a school offers to each student-customer is partly a function of the other students.

Good students also attract good teachers. Most teachers are strongly motivated by the desire to cultivate talent. That's what compensates for the often repetitive work of teaching the same material, the often frustrating task of grading papers written in haste, and the often infuriating hassles generated by school bureaucracies—not to mention the relatively low pay. The bright lights in the class, and especially the unexpected ones, who take to the subject and blossom, are what make the job exciting.

So schools have strong reasons to seek the best students they can. And since they are competing with each other, the best-managed ones will engage in an entrepreneurial version of affirmative action by looking beyond the prep schools and wealthy suburban high schools to find talented students whose parents could not afford either. Today, this often means black, Hispanic, and other minority groups. Students from these backgrounds are usually less well-prepared and may well have lower scores on standardized tests. But it may still be worth a school's effort to invest in some remedial work (and to take risks on misjudging candidates) for the payoff of having high-quality students.

There's another reason why a college or university might engage in something akin to affirmative action—or segregation, for that matter. By and large, race, sex, ethnicity, social class, and sexual preference are no more relevant to education than hair color or height are, and one would expect schools to ignore them. Nevertheless, the training of minds is one of the most complex tasks one can undertake. A great many social and emotional factors affect the degree of success. College-age students are barely on the cusp of adult maturity. Many are living away from home for the first time. In the classroom—if they are getting a good education—they are dealing with material that raises intensely personal questions about their identity and values. And they are distracted from their studies by social opportunities and pressures.

Some students may find it easier to sustain the kind of focus and commitment that college studies require if the other students are of the same cultural background, which today often means the same racial or ethnic background. Some students may find it easier to sustain that kind of focus without the distractions of the opposite sex. So there might well be schools specifically for men or women, blacks or whites, Christians or Jews, Hispanics or Asians, etc.—just as there always have been historically. Those schools would have to maintain uniformity through restrictive admissions policies.

On the other hand, some students flourish in a cosmopolitan, multicultural environment. Interacting with people of very different backgrounds enhances their eagerness to push beyond their mental horizons and acquire the larger body of knowledge that a college curriculum offers. As in the case of attracting talent, a school that aims at this sort of environment will have to manage it entrepreneurially, seeking out candidates of diverse backgrounds. While skin color per se may be irrelevant, it is correlated in a loose way with cultural differences, and it isn't hard to imagine an admissions procedure that operates like the University of Michigan's.

Advocates of freedom, reason, and individualism, in other words, should recognize the limits of the case against affirmative action. In its current form, to be sure, it is corrupted by the collectivist agenda it serves. In an institution supported by public money, no such discrimination should be permitted. And the diversity rationale now before the Court is fallacious and hypocritical. But the answer to that argument is not to impose a uniform admissions policy on institutions. The ideal would be a free system offering diversity of educational approaches, including diversity in admissions policies.

Readers seeking more information on the affirmative action cases that will be heard by the Supreme Court may wish to consult the following organizations' Web sites.

The Center for Individual Rights: Briefs and supporting articles:  http://www.cir-usa.org/recent_cases/michigan.html

The University of Michigan: Briefs, supporting articles, and the research study by Patricia Gurin that the university relied on to argue for the educational benefits of diversity:  http://www.umich.edu/~urel/admissions/legal/expert/

The National Association of Scholars: Summary of briefs and supporting articles, including the study by Thomas Wood and Malcolm Sherman critiquing the Gurin study:  http://www.nas.org/reports/sup_ct_mich/sup_ct_mich_launch.htm

This article was originally published in the February 2003 issue of Navigator magazine, The Atlas Society precursor to The New Individualist.

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