IT IS ILLEGAL for the University to discriminate on the basis of race and ethnicity in its admissions policies, but the policy should be ended even if it were not illegal. Legal or illegal, it is unjust for some students to be admitted to college because they have the right melanin content or ancestry, and for others not to get in because theirs is wrong. It is not only unfair in human terms but opens the door to other, anti-minority discrimination.
It inevitably creates resentment among the disadvantaged groups and stigmatizes the supposed beneficiaries, putting a big affirmative action asterisk next to them and their records. It compromises the University's intellectual mission and creates pressure for double standards in grading and graduation, too.
Now to the law. As a state institution, the University is subject to the Constitution's Equal Protection Clause, which makes it illegal to "deny to any person ... the equal protection of the laws." Because it receives federal money, the University also is subject to Title VI of the 1964 Civil Rights Act: "No person ... shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity ...."
The Equal Protection Clause and Title VI treat all races equally: nothing in either suggests that it is more permissible to discriminate against whites and Asians than against blacks and Hispanics.
The Supreme Court has declared, "A racial classification, regardless of its purported motivation, is presumptively invalid and can be upheld only upon an extraordinary justification." This extraordinary justification requires that a state point to a "compelling" goal and virtually no non-discriminatory way to achieve it. The Court repeatedly has stated that this framework applies in cases of "reverse discrimination" as well as old-fashioned discrimination. There are only three possible goals that the University might hope to persuade a court are "compelling."
First, the University might argue that it must use preferences prophylactically, to keep itself from discriminating. But college officials are the most politically correct people in the world and, based on their present willingness to discriminate in favor of blacks and Hispanics, the University's are no exception. It cannot be argued seriously that the University suddenly will start discriminating against these groups if it stops discriminating in their favor.
Second, the University might claim that its discrimination is remedial, to make up for past discrimination. But it has been some years since the University has discriminated against blacks, and the new policy of preferences does nothing to redress those past victims. Instead, the beneficiaries are 17- and 18-year-olds, born in the early '80s, long after the passage and national enforcement of the civil rights laws.
Yes, there still are lingering effects of that discrimination, but the Court's opinions make clear that this is too amorphous a claim to pass legal muster.
And so we are left with the diversity rationale. Despite its current popularity, it has a very thin legal pedigree, being endorsed only by Justice Lewis F. Powell -- and no other justice -- in his 1978 Regents of University of California v. Bakke opinion. In the 1996 case Hopwood v. Texas, the 5th U.S. Circuit Court of Appeals concluded that the diversity rationale still would fail to command a majority on the Supreme Court. The court of appeals with jurisdiction over the University, in a case striking down blacks-only scholarships, also has stated that racial classifications "must be reserved for remedial settings." It is hard to square the remedial justification with the clear language in Title VI; for the diversity rationale, it is impossible.
Justice Sandra Day O'Connor has pointed out that "modern equal protection doctrine" has recognized only the remedial rationale as compelling. If something as touchy-feely as diversity can justify discrimination, then anything could.
Moreover, the colleges' use of the diversity rationale is inconsistent with Justice Powell's opinion itself (last week's 4th U.S. Circuit Court of appeals decision in Tuttle v. Arlington County School Board bears this out). Powell would have permitted a college to use race to ensure that it enrolled students with "ideas and mores" and "experiences, outlooks, and ideas" who will "contribute the most to the 'robust exchange of ideas.'"
Powell was wrong that race must be considered in order to achieve this sort of intellectual diversity. But he also wrote: "If [the university's] purpose is to assure within its student body some specified percentage of a particular group merely because of its race or ethnic origin, such a preferential purpose must be rejected" because that is "discrimination for its own sake. This the Constitution forbids."
This is a fair description of what most college officials are doing. They have decided beforehand that they will feel better if they have a particular mix of students. And so an impoverished Asian who would improve a school's intellectual diversity is rejected in favor of a wealthy black student who will not, because the school has its predetermined racial goals. That is "discrimination for its own sake," and that is illegal.
(Roger Clegg is general counsel for the Center for Equal Opportunity, which published "Preferences in Virginia Higher Education," a study presenting evidence of discriminatory admission policies at the University.)
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