Barbara Grutter, left, and Jennifer Gratz, plaintiffs in the affirmative action
April 1, 2003
It's Time to Break Up the College Color Cartel
Congress should permit race-based preferences in
private universities while banning them in public ones
by Jonathan Rauch
On Tuesday, the Supreme Court will confront a fact that
you won't find prominently mentioned in any high school civics book: Americans
of Asian descent face racial discrimination when they apply to almost any
selective university in the country. So do most whites. Asians and whites who
wish to avoid being penalized for their color can apply to public universities
in a handful of states that have banned or curtailed overt racial preferences.
(The states are California, Florida, Georgia, Louisiana, Mississippi, Texas, and
Washington.) Or they can choose a nonselective university. Or they can skip
college. Or they can go abroad. Or else—tough.
Here is another fact that the civics texts won't play up: If not for pervasive
and systematic race-based discrimination, black and Hispanic students would be
few and far between in many of the country's top universities and professional
schools. Some of those schools might look almost as if they were clubs for
whites and Asians. If an elite university today wants blacks or Hispanics in
anything like the proportions that its graduates will encounter in the real
world, it must discriminate based on race, or else it must use other stratagems
to similar effect. Or else—tough.
After dodging the issue for years, the Supreme Court will decide this term
whether the University of Michigan has taken racial preferences too far. As my
colleague Stuart Taylor Jr. noted recently (see NJ, 1/25/03, p. 223),
Michigan fixed its admissions standards so that a white or Asian applicant's A
is treated like a black or Hispanic applicant's B. Is that amount of
discrimination (for discrimination is what preferences are) too much?
Tuesday's oral arguments will be closely watched, and rightly so. In a larger
sense, however, the outcome will not much matter: The Court stands no chance of
finding stable, common-sensible ground. It faces a choice between two
unpalatable extremes, with no peace or quiet in the middle. Under existing law,
the Court cannot offer a way out. But Congress could.
Specifically, Congress could amend the 1964 Civil Rights Act to permit
race-based preferences in private institutions of higher learning, while
simultaneously banning preferences in public ones. The result would be fairer,
more stable, and more logically coherent than any of the options available to
the Supreme Court under existing law.
In an important new book (Diversity in America: Keeping Government at a Safe
Distance, to be published in April by Harvard University Press), Yale
University law professor Peter H. Schuck argues that the government should speak
clearly against discrimination, but that private universities should be given
room to use preferences in search of diversity. "A racial preference
mandated by public law is much more objectionable than one that a private entity
decides to establish to reflect its own values and for its own purposes,"
he writes. I concur. Yet there is an entirely different, and even more
compelling, rationale for a two-track, public/private approach.
Current law takes as its premise that each American has a personal right
never—or almost never—to face discrimination based on race, color, or
national origin. Race-based discrimination is like assault in the sense that
even one case is too many.
Where jobs and public accommodations are concerned, that is probably a good
rule. Few if any employers or enterprises need to discriminate in order to
perform their core functions. Universities, however, are different. They are
gateways to all other social opportunities. More important, exposing students to
diversity—including racial diversity—seems a legitimate and arguably
essential part of modern education's mission. In today's America, a university
without blacks or Hispanics would look to many conscientious parents as
educationally derelict as a university without economics or biology.
Now, no one wants to see Harvard set up strict racial quotas. But it seems just
as unreasonable to say that when Harvard looks at an applicant, it can notice
everything except race—which is still, like it or not, a defining
social category in America.
One answer would be to say, as Justice Lewis F. Powell Jr. effectively did in
the 1978 Bakke case, "Discriminate a little, but not a lot."
Alas, a little turns out not to be enough. It often takes a heavy thumb on the
scales to achieve what Michigan and other schools call a "critical
mass" of black or Hispanic students. The middle ground that Powell sought
does not exist. The result is that many selective universities discriminate a
lot, even though the law says that discrimination should happen rarely or never.
The result of that result: unfairness, divisiveness, hypocrisy, and general
The problem here is fundamental. The whole premise of the current
anti-discrimination model is wrong. In higher education, the law should not seek
to prevent discrimination in every particular case. It should seek, rather, to
ensure that discriminators never dominate the market.
Antitrust law has been built for a century upon the insight that prevalence
matters. Trustbusters worry only about practices that are so
widespread—usually because of monopoly or oligopoly power—as to skew entire
markets, or at least large portions of markets. If the little computer shop down
the street cuts prices by large amounts or for particular customers, that's
called a sale or a promotion, and it's fine. If Microsoft does the same thing,
it's called predatory or discriminatory pricing, and it is not fine.
By the same token, if a single Mormon university decided to admit only Mormons,
that would not be a big problem for non-Mormons. They would have plenty of other
opportunities. If, on the other hand, all non-Mormon universities decided to
admit only non-Mormons, that would be a very big problem for Mormons, because
the educational market would be virtually closed to them.
In higher education, the central problem is not that some selective schools
discriminate but that the vast majority do, and all in the same way. If you
happen to be of Asian ancestry, you can apply to only a few places where the
scales aren't weighted against you. If discrimination were rare and random, you
could escape it. But when discrimination dominates the market, it is unfair and
Today's university system is, in effect, a mighty cartel of color-consciousness,
an OPEC of unequal educational opportunity. The answer, however, is not to say
that no college can ever take race into account; nor to say that all colleges
can discriminate provided they avoid the word "quota." The answer is
to bust the trust.
One way to achieve that end would be to establish a Higher Education Opportunity
Commission that would work like the Justice Department's Antitrust Division. It
would review universities' admissions policies with an eye toward ensuring that
discrimination did not become prevalent in any one niche or region. Even to
propose so intrusive and bureaucratic an approach, however, is to recognize its
impracticality. Fortunately, there is a simpler way to skin the cat.
America is blessed with a vibrant mixture of public and private universities, in
every region and every market niche. Although the University of California
(Berkeley) may not be quite the same as Stanford, it is gloriously close. By the
simple expediency of banning preferences in the public sector, the country would
ensure a wide range of nondiscriminatory educational opportunities to students
who seek a safe haven from color codes. At the same time, the rich assortment of
private schools with race-conscious admissions policies would ensure an ample
supply of chances for black and Hispanic students to enter the ranks of the
elite, and equally ample chances for white and Asian students to rub elbows with
Proponents of color-blind admissions might not like private preferences, but
they would be glad to know that the government, with its leading educational
role and its unique symbolic importance, kept clear of them. Affirmative-action
diehards might wish that state schools used preferences, but they would be
reassured to know that private schools could continue promoting racial justice.
Students might need to make compromises—travel farther, pass up a scholarship,
not have a wrestling team—to find a school that let them either avoid
preferences or benefit from them, but they would at least have the choice.
As of today, Congress and popular opinion remain wedded to the binary,
all-or-nothing civil-rights model of old. Still, the disintegration of that
model is fast opening the way for a fresh approach. Elementary physics dictates
that two trains cannot pass on a single track; and today's policy is nothing if
not a train wreck.
How can we manifest peace on
earth if we do not include everyone (all races, all nations, all religions, both
sexes) in our vision of Peace?
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