Racial and ethnic preferences in higher education

An important question in higher education today is whether colleges should discriminate in admissions on the basis of race or ethnicity. In framing the issue of "affirmative action" in these terms, I do not mean to suggest that the answer has to be no, but we do have to be honest in admitting that this is the issue.

Those favoring discrimination often avoid this honesty. If accused of advocating discrimination, they will respond, for instance, by saying that race or ethnicity is "only one factor among many that should be considered." But that still means that there will be some cases - in fact, as a series of studies by the Center for Equal Opportunity has shown, this "one factor" is very often given heavy weight - in which it makes the difference between whether someone is admitted to a college or not. If that is not true, then why consider race or ethnicity at all? And when it is true, then discrimination has occurred.

Defenders of preferences also will frequently point out that the SAT is not a perfect predictor of future performance at college and that other admission criteria frequently used like being a good tennis player or the offspring of an alumnus - are even less predictive. If schools are using selection devices that are defective for whatever reason, go ahead and criticize them, but do not think for a minute that such criticisms make considerations of race and ethnicity any less discriminatory.

So, we are dealing with discrimination - the real question is, Is the discrimination worth it? To answer that, we must consider both the purported benefits and the costs of preferences.

The claimed benefits for the use of preferences fall into three categories: prophylactic, remedial, and diversity. The prophylactic justification is that we must affirmatively discriminate in favor of a group's members lest we fall into discriminating against them. The remedial justification is that discrimination now in favor of members of a group can help make up for discrimination in the past against members of that group. And the diversity rationale is that there are benefits to having certain groups represented at the school.

THE PROPHYLACTIC ARGUMENT

The prophylactic argument has very little plausibility in American higher education today. Do we really need preferences to keep college admission officers from discriminating against blacks and Hispanics? Of course not: the only discrimination they are apparently inclined toward is against whites and Asians. It is sometimes argued that, even if admission officers will not discrimi nate, others in society will. But does it really make sense to offer preferences for slots in medical school because young black men have a harder time hailing a cab? The Supreme Court has repeatedly dismissed such an untethered rationale.

There is also an obvious pitfall with the second, remedial rationale: discrimination in favor of today's individuals in group X does nothing to help the different individuals in group X who suffered discrimination in the past. The justification, then, must argue that the very individuals who suffered discrimination against them are the ones who now will be receiving discrimination in their favor, or that the discrimination suffered in the past has had discriminatory results still being felt by those in group X.

As to the first justification, bear in mind that, in the context of college admissions, we are dealing mostly with eighteen-year-olds, born around 1981. They probably have not participated much in the work force; if they have, the laws prohibiting discrimination against them on the basis of race or ethnicity have been in effect since long before they were born. Nor have they suffered discrimination in education. Public schools are no longer segregated by race or ethnicity, nor are most private schools.

There are exceptions to the statements in the preceding paragraph. Some eighteen-year-olds may have suffered employment discrimination because of their race or ethnicity; some public schools may receive less funding because of the ethnicity of the children who go there; maybe some students are not pressed as hard because of their skin color. But the point is that an eighteen-year-old today is unlikely to have suffered the kind of systematic discrimination against him or her that would justify systematic discrimination in his or her favor.

So, under the remedial rationale, we are left to consider preferences for race and ethnicity because of the historical effects of discrimination being felt by the descendants of those who suffered the discrimination firsthand. Whether such preferences make sense will hinge on how good a "fit" there is between the class of people who have a particular color or ethnicity and the class of people who are suffering because of past discrimination against their ancestors.

The fit is a poor one. There are, to mix a metaphor, too many false negatives and too many false positives. That is, many people who are descended from past sufferers of discrimination are not eligible for preferences, and many who are not so descended will be eligible. For instance, not only blacks and Hispanics but also Jews, Asians, American Indians, and Americans of Irish, Italian, Polish, and German origin have all been subjected to discrimination at one time or another in this country. Conversely, some blacks are descendants of recent immigrants and can hardly claim to have suffered even indirectly from slavery and the Jim Crow laws; a high percentage of Hispanics are immigrants or descended from recent immigrants. It is also unclear why the only relevant discrimination to consider is that which occurred in the United States. If a college wants to right the wrongs of past discrimination that it did not itself commit, then why does it matter where the discrimination occurred?

This really would open the floodgates, because many, many immigrants -- especially the early WASPs, whose descendants everyone hates - were fleeing religious or some other kind of persecution in their native countries.

Some have suggested that preferences ought to be limited to blacks, a special case of particularly heinous discrimination (although no black was interned during World War II, like Japanese Americans, or shunted off to reservations, like American Indians). But, again, not all blacks have slave ancestors. And not every black was confronted with discrimination or, at least, the same kind of discrimination (among the most obvious variables are geography and occupation).

It is likewise dangerous to generalize among the many different subgroups who make up the group "Hispanic," a social-scientist construct. And many blacks and many Hispanics do not suffer a depressed socioeconomic status, even though they or their ancestors may have suffered discrimination -- which makes it impossible to justify a preference for them on the assumption that they do.

It is also a non sequitur to assert that those blacks and Hispanics who did suffer a depressed socioeconomic status and who also may have suffered discrimination became or remained impoverished because of racism. Their individual actions may have had at least as great an impact. Illegitimacy, substance abuse, and poor study and work habits can mire an individual in poverty as surely as racism can. I understand the argument that racism leads to despair and that despair makes bad lifestyle choices more likely, but this is a tenuous sequence, overcome by many.

There is also the problem of mixed ancestry. If a wealthy white doctor marries a nurse who belongs to a discriminated-against minority, are their children entitled to a full preference, or no preference, or a half preference? This question cannot be avoided. Either you say that one drop of minority blood entitles someone to a full preference, or you draw the line, Nuremberg-fashion, somewhere else, or you award weighted preferences. All are unattractive choices.

Finally, it would be desirable if those now penalized by the use of preferences also happened to be the beneficiaries of past discrimination against those now receiving the preferences. There is, however, little if any correlation in this regard. Recent immigrants and children of recent immigrants, descendants of working-class northerners, Midwest farmers' sons, Hasidic Jews, and so on - none of them is likely to have benefited in more than a very indirect way from discrimination against blacks or Hispanics, yet each of them is placed at a competitive disadvantage with them by admission preferences.

The third and final justification for the use of preferences draws heavily from the late Justice Lewis Powell's opinion joined, incidentally, by no other justice - in Regents of the University of California v. Bakke: namely, "the educational benefits that flow from an ethnically diverse student body."

The first problem to note here is that the rationale is "exclusive" as well as "inclusive." If diversity can justify preferences in favor of certain groups that are "underrepresented," then logically it can justify negative weights on those that are "overrepresented." There is simply no way to justify the former without justifying the latter. Saying there are "not enough" blacks and Hispanics is no different from saying that there are "too many" Jews and Asians.

Well, let's press on. What might the "educational benefits" of diversity be? Sometimes it is argued that simply being with people who have a different color or ethnic background is desirable, even if they do not otherwise differ, precisely because this shows students that race and ethnicity do not matter. But this plan will work only if the potentially bigoted student is surrounded by others who really are similar to him in ability. If the minorities admitted into the school are less qualified than the nonminorities, prejudice will be reinforced, not eroded.

The other possibility is that in fact differences among groups do exist, and that these differences justify preferences to ensure racial and ethnic diversity. Of course, right away it must be acknowledged that not all such differences are important. Maybe some groups, as a whole, have a particular "outlook" or "experience" when it comes to food, but so what? The desired differences ought to relate to the intellectual discipline being taught. Thus, for instance, it is unclear how any cultural difference is relevant to graduate work in mathematics.

But there is a more critical point. Given that we might want some particular inner qualities or experiences represented at the university, does it make sense to use race or ethnicity as a proxy for them? Instead, why not select directly for the quality or experience rather than assuming that everyone of a particular race or ethnicity has it and that others do not? In his opinion, Justice Powell stressed the importance of having students with particular "ideas and mores" and, later, "experiences, outlooks, and ideas," who will "contribute the most to the `robust exchange of ideas."' But if we want students with particular ideas, mores, outlooks, and experiences, then why not select those students - rather than assuming that, because a student has a particular color or ancestry, he or she will meet the admission officer's conception of, for instance, a typical black or Hispanic?

This is also a good time to put the shoe on the other foot. How persuasive would most affirmativeaction apologists find it if a college were to limit the enrollment of minorities and women by using race, ethnicity, or sex as a proxy? Not very, I am sure. There is not much difference in this context between a proxy and a stereotype.

At the end of the day, the diversity rationale boils down to an argument that the firsthand experience of discrimination is one that ought to be represented in the study of certain disciplines, such as law and sociology. Certainly this is the strongest case for the use of race or ethnicity as a proxy. But the weakness in this claim is essentially the same as the weakness in the claim for "remedial benefits" based on these characteristics: we are dealing, after all, with teenagers, born around 1981. We are being asked to believe that all, or nearly all, of these teenagers -- regardless of other particulars in their backgrounds - have suffered discrimination to the extent and of the sort that will give them special insights lost to other eighteen-year-olds. Very dubious.

CONSEQUENCES OF DISCRIMINATION

Still, I am not prepared to say that the claims for benefits from preferences are ludicrous, although obviously I believe each claim is deeply flawed. But the inquiry cannot end with the conclusion that there might be something to the claim that the use of preferences has some benefits. We must proceed to ask, Is it likely that those benefits outweigh the costs? And those costs, unlike the claimed benefits, are clear and undeniable.

To begin with, you are discriminating on the basis of race or ethnicity. You are making generalizations about people on the basis of these immutable characteristics. You are then rewarding or punishing them because they happen to have a certain color or ancestors. This practice is unfair to the individual involved - and it is disastrous as social policy. Once discrim ination becomes institutionalized, it is very hard to get rid of. You also set a very bad precedent when you give up the principle of nondiscrimination. It is an especially dangerous activity for a state-run institution.

Next, you create resentment among many of those who lose out because of your discrimination. And this resentment is unlikely to be limited in time or scope to the one instance in which it occurs. It is also unlikely to be limited to the immediate victims: their parents, friends, and families will be resentful, too.

You will stigmatize the socalled beneficiaries of the preferences - both in the eyes of others and in their own eyes. You will diminish the accomplishments of those blacks and Hispanics who did not need special treatment. Where preferences are used, people classmates, future employers - will assume that a person in the preferred group who was admitted was less qualified than other people who were admitted. And, of course, that is a fair assumption. The whole purpose of the preferences is, after all, to admit those who would otherwise have been rejected as less qualified. It assumes some groups cannot succeed if held to the same standards as others.

You will compromise the mission of the university. You will be making intellectual ability a secondary attribute. You will be tempted to discriminate in your grading, retention, and graduation policies. The school's graduates will be less competent, with all the attendant social and economic costs of that.

Finally, you will be breaking the law. The court of appeals in Hopwood v. Texas has ruled, correctly, that the Fourteenth Amendment (which applies to all state schools) and Title VI of the Civil Rights Act of 1964 (which applies to all schools, private and state, that receive federal money) forbid the use of admissions preferences. And the Supreme Court has ruled that section 1981 of title 42 of the U.S. Code bars racial discrimination even by private schools that do not receive federal money.

UNDERREPRESENTATION

A last-ditch argument made by those favoring discrimination is that, whether or not the preferences can be justified, we must use them because otherwise certain groups will be dramatically "underrepresented" at our colleges and universities. But this is precisely the rationale that even Justice Powell rejected in another part of his Bakke opinion, where he wrote that ensuring a particular racial mix is nothing more than "discrimination for its own sake."

Besides, the claim is exaggerated. The students who otherwise got into top-tier schools can still go to second-tier schools -- where, incidentally, they will be surrounded by students whose qualifications they more closely match. Not a bad thing: indeed, a good thing.

But what about those top-tier schools? Isn't it the case that for them there may be, for instance, fewer blacks or Hispanics - even if other criteria are used in addition to standardized test scores? But if a school is using the best criteria it can devise to select the best qualified students, then no one should object to the school's demographic makeup. Suppose no blacks are admitted to Harvard medical school one year. So what? Is it rational for black people to conclude from this fact that the United States is racist or that they have no stake, or less of a stake, in our nation? Only a Harvard intellectual could believe that. There are other medical schools; nor is there any reason why only black doctors can - or should be encouraged to - treat black patients. Different professions favor different interests, talents, and inclinations, which may not be perfectly mirrored at every point in time among our nation's many demographic groups. Again, so what?

So, tally up the costs and benefits. Maybe there is something to the diversity rationale in some cases, and maybe there is something to the remedial and prophylactic rationales in some cases, too, although we have seen that all three rationales are riddled with holes. You still are obliged to consider what is on the other side of the scale: the fact that you are discriminating, the resentment, the stigmatization, the compromising of the mission of the university, and the illegality. Which way does the scale tip? To anyone who is intellectually honest, it is not a close question. Preferences should not be used.

Roger Clegg is vice president and general counsel of the Center for Equal Opportunity, a Washington, D.C.-based think tank devoted to civil rights, bilingual education, and immigration issues. A graduate of Rice University and Yale Law School, Mr. Clegg served as a deputy in the Department of Justice's civil rights division during the Reagan and Bush administrations.

Copyright National Forum: Phi Kappa Phi Journal Winter 1999
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