Living Without It

At the University of Texas Law School, the halls are whiter than they once were. Three years after a federal court ruled in Hopwood v Texas that public universities in the state could no longer use race as a factor when considering applicants, there are a mere eight black students in a first-year class of 455 at the law school, a smaller percentage than in 1950. On March 8^th, angry students pounded the walls while Ward Connerly, the driving force behind the demise of affirmative action in California, was inside making a speech as part of his national campaign. Much to the chagrin of the student demonstrations, Mr. Connerly’s drive is gathering momentum.

Although Texas is ground zero in the fight over racial preferences in American universities, it is far from the only battlefield. Last November, voters in Washington state passed a referendum similar to California’s Proposition 209, banning racial preferences in college admission. I both Washington and Michigan, lawsuits similar to the Texas case have been filed against the public universities. The conservative public law firm that brought those suits recently sent out a handbook to students at elite universities, a step-by-step guide to suing colleges for “illegal racial preferences”. Aspiring lawyers will doubtless seize on it.

For 30 years, American universities sought to increase racial diversity by recruiting and admitting minority candidates, sometimes at the expense of white candidates with better qualifications. This practice went unchallenged until 1978, when the Supreme Court ruled that, although rigid racial quotas were unconstitutional, universities could take race into account since there was a “compelling interest” in promoting diversity in America’s colleges.

Yet this argument rested on shaky constitutional ground, and no court has since echoed it. For this reason, opponents of racial preference have launched an assault on university preference programmes, both in the courts and at the political level with statewide referendums. As lawsuits similar to Hopwood spring up in other states, it is now almost certain that the Supreme Court will soon have to reconsider affirmative action.

Proponents of affirmative action, including most university administrators, feel they need only point to the decline of minority enrolment in the best public universities in California and Texas in the two years since the ban on racial preferences went into effect. Two former Ivy League presidents weighed in last year with an influential statistical study, “The Shape of the River”, which attempted to prove that affirmative action programmes succeeded not only in fostering diversity but also in integrating the highest levels of the professional world.

Conservative opponents of preferences admit that minority numbers have decreased at the most selective public universities in Texas and California. Yet they point to the fact that enrolment of blacks and Latinos throughout the state system has remained stable since 1996. For instance, a minority student in California who would have been admitted to Berkeley under the old system may now end up at Riverside, a less selective college. According to Harvard’s Stephan Thernstrom, an opponent of racial preferences, the news system ensures a higher minority graduation rate by not accepting students incapable of doing well at the best colleges. The way to guarantee more minority students at the top universities in the future, conservatives argue, is to address the twin pillars of social disintegration: broken schools and broken families.

Opponents of racial preferences also accuse the other side of double standards: on the one hand lamenting the decline of black and Latino enrolment since 1996, yet at the same time ignoring the dramatic increase in the number of Asians admitted during that period. Long boasting the highest scores on standardized tests among minority groups, Asians have never needed preferential treatment from universities, and are now benefiting from the new system. (In the past, some universities used quotas to keep Asian numbers down).

Sensing that it would soon be on the wrong side of the law, the University of Massachusetts announced last month that it would be no longer attempt to increase diversity through racial preferences. Instead, it will assess the financial situation of each candidate and give preferences to students from poorer backgrounds. Proponents of colour-blind admissions have long advocated this “class-based” approach, yet the University of Massachusetts has come under attack for abandoning the promotion of racial diversity. Critics argue that, since poor blacks and Latinos tend to have lower test scores than poor whites, the new system will increase the number of white students at the expense of minorities.

Both sides arm themselves with government studies and self-serving statistics; yet most people concede that very little can be done at the political level. The future of racial preferences rests with courts. What the legal system cannot do, however, is addressed the root of the problem: the fact that black and Latino students still lag woefully behind their white counterparts. So long as this grim reality persists, the system will remain broken, and no amount of judicial tinkering will fix it.

Caroline Austin

/Economist, Dec.12, 2005/

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