The Center for Equal Opportunity (CEO), an anti-affirmative action group run by former Reagan/Bush assistant attorney general Roger Clegg and labor secretary nominee-for-a-week Linda Chavez, has released yet another report on the "widespread" and "appalling" use of racial preferences in higher-education admissions. Previous reports have attacked admissions policies at numerous state universities and medical schools; this one goes after three partially publicly funded Virginia law schools: the University of Virginia, William & Mary, and George Mason. With the report came the inevitable barrage of press releases, news conferences, and op-eds in The Washington Times and National Review, all of which more or less recited the report's executive summary and most salient findings.
It might seem odd that the CEO opted to sink so much effort into something so obvious. As the dean of UVA's law school responded when asked about the report by the Richmond Times-Dispatch: "Do we take race into account, along with other factors, in seeking a diverse class? You bet we do! ... If that is what they tried to prove, they could have asked us." In his National Review column, Clegg accused the schools of "play[ing] fast and loose with laws" and groused that "somebody oughta get sued." But as he well knows, the use of racial preferences has been legally sanctioned by the Supreme Court since the 1978 Regents of the University of California v. Bakke decision upheld "the attainment of a diverse student body" as a compelling state interest. The schools are not breaking the law as it exists today -- they're only breaking the law as Clegg wishes it were.
Of course, some schools are getting sued in an attempt to change the law -- and those lawsuits are key to understanding the context that fuels this and similar bursts of false conservative outrage. It will surprise no one to learn that the right has for years been waging war on affirmative action. In higher education that has meant conducting nationwide searches for embittered white students with arguable cases and representing them or filing amicus briefs on their behalf. Conservatives have had numerous successes at the federal appeals courts, notably the 5th Circuit, which upheld a moratorium on racial preferences in Texas. But they have also had defeats, notably on the 9th circuit, involving a case in Washington state. The U.S. Supreme Court has thus far declined to intervene in conflict, but rumors have it that it will do so after the 6th Circuit hands down its decision on a pair of challenges to the University of Michigan's admissions policies (including one directed specifically at the law school).
If so, it will signal the final -- and what may also be the toughest -- stage of the conservatives' long and well-orchestrated campaign. Clegg and others claim to be confident that the Supreme Court will do away with Bakke's "diversity" rationale and hence with all racial preferences; some conservatives even insist they can see 9-to-0 decision based on justices' previous voting. But others are plainly worried. The Rehnquist court, though certainly conservative ideologically, has also proved to be conservative methodologically -- that is, cautious and pragmatic, led by a powerful center rather than the either of the wings.
Indeed, there's an easy parallel to be drawn with another all-out conservative effort to reverse high court doctrine: Roe v. Wade. Two decades of intense campaigning came to a head in the 1992 Casey decision, argued before a "conservative" court. Yet though the court found the Roe reasoning to be faulty, it chose to maintain the right to abortion under a slightly different review scheme. It's not hard to imagine the court striking down Justice Lewis Powell's particular "diversity" rationale (never joined by any other justice, as anti-preferences activists love to repeat) in Bakke and yet finding other grounds to avoid a categorical ban on racial preferences in admissions -- which would, at least initially, lead to a precipitous drop in minority enrollment across the country.
Such a balanced approach would be anathema to the anti-preferences activists at the CEO, hence the manufactured outrage. The CEO and other organizations hope to use such uproar as "evidence" of affirmative action's unpopularity and negative societal impact, thus giving the court's tentative conservative majority the courage to finish off preferences once and for all. Reports like the one described above fit in by throwing numbers at people that, on their face, seem outrageous. Particularly useful for this task are the rather inscrutable "odds ratios" between white and black candidates. For example: "At UVA, the odds favoring a black candidate over an equally qualified white candidate in 1999 were 731 to 1." The report also includes a personal formulation to terrify any borderline white candidate: "A student with an LSAT score of 160 and an undergraduate GPA of 3.25 had a 95 percent chance of admission if he or she was black, but only a 3 percent chance of admission if white."
Of course, such stark differences exist only for candidates within a few categories. What's more, because of the relatively small number of black applicants, the odds for white students even within those categories would rise only by a few percentage points, if at all, in the absence of racial preferences.
The Shape of the River, a 1998 pro-affirmative action book by former presidents of Princeton and Harvard, effectively made this case. It showed that although the disparity in admission-rate percentages occasionally looks huge, eliminating racial preferences would raise the percent of admitted white applicants in each SAT category by only a few points. Last month in The Washington Post, attorney Goodwin Liu tried to calm fretful students and parents with a similar analysis. He also noted that at least a portion of the admit-rate differential comes from race-reflective but not race-related factors: athleticism, for example, or geographic diversity. Even in the CEO study itself one can find data that strike a more reasonable note. For example, the admission rates for various groups: The same UVA class that "discriminated 650 to 1" in favor of blacks admitted 33 percent of white applicants and only 27 percent of black applicants (and only 16 percent of Hispanic applicants).
So the image the CEO's much-touted odds ratios paint -- hundreds upon hundreds of minority applicants cutting in line -- is misleading. People might also find it helpful to remember that even with all the use of racial preferences, minorities are still underrepresented on most campuses. The "650 to 1" UVA class, for example, was only 8 percent African American (though blacks are 12 percent of the national population) and only 2 percent Hispanic.
In my own view, until we know better why blacks and other minorities arrive at admissions-office doors with less impressive quantitative assessment scores, and until we have fully quieted concerns about bias in standardized testing, it would be supremely irresponsible for the court to terminate all racial preferences in higher education. But my view doesn't really matter; neither does Roger Clegg's or the CEO's. Constitutional law at this point is Powell's opinion, which wisely (if not entirely explicitly) left considerable discretion to the admissions professionals reviewing individual applications at individual schools -- not to ideologues on either side. It is now inevitable that Clegg and the CEO will have their day in court, as they should. But the rest of us should ignore their hysteria.
