The Cavalier Daily
Serving the University Community Since 1890

Looking for legally defensible diversity

THE UNIVERSITY can and must promote a diverse learning environment. Diversity of geography, diversity of gender, diversity of interests, and of course, diversity of race, are all keys to a robust intellectual community. Over the past 30 years, the University has chosen affirmative action as the means to achieve diversity. As the debate over the University's admissions policy continues, we must as a community be careful not to confuse affirmative action with diversity, and to justify the legality of the means we choose by the necessity of the ends we desire.

The facts behind University admissions are a conservative legal fund's dream. According to statistics for 1996 provided by the University to the Center for Equal Opportunity, black applicants were 45 times more likely to be admitted than white applicants. In that year, 1,129 white applicants were rejected with SAT scores and class ranks equal to or greater than the average black admittee. Putting normative issues aside, these statistics paint a picture of discrimination against white applicants that would be hard to defend in court.

A party facing litigation must ask itself two key questions; will I win, and what will be the price of losing? Board of Visitors Rector John P. Ackerley's admonitions aside, the University cannot afford to litigate race-based admissions. It likely will lose, and the cost of fighting would be far more destructive than choosing not to litigate at all.

To justify discrimination on the basis of race, a state action must pass strict scrutiny. Strict scrutiny means that the state has a compelling interest in discriminatory activity, and that the program is narrowly tailored to achieve that interest and that interest only. The University likely would argue that promoting diversity is a compelling governmental interest. Support for this notion is found in the 1978 Supreme Court decision, Bakke v. Regents of the University of California, where Justice Powell, writing in concurrence but as the swing vote, said that race could be used as a "plus factor" in order to advance diversity. In recent years, however, this language in Bakke has lost its legal weight, becoming viewed as the opinion of only one justice. In 1996, the Fifth Circuit Court of Appeals, in Hopwood v. State of Texas, rejected Bakke's precedential weight, and held that "any consideration of race or ethnicity by [the University of Texas] for the purpose of achieving a diverse student body is not a compelling interest under the Fourteenth Amendment." The Fourth Circuit, which covers Virginia, repeatedly has refused to rule on this subject, but also has made it clear that its silence should not be interpreted as support for racial diversity as a compelling interest.

In fact, the only compelling interest recognized by the Fourth Circuit is the remedying of past discrimination. To defend affirmative action, the University would have to prove that the effects of past discrimination are alive and well on Grounds. The ghosts of the Byrd Organization, Massive Resistance, and school closings would be invoked and emphasized for a whole new generation of applicants. How many minority applicants would want to attend a school that has just advertised its ugly history on the national stage? And how many would want to attend a school that honestly believes that this same ugly history lingers on, pervading its own institutions to the core? This is the price of pressing the fight to the courts. A defense of affirmative action comes at the expense of minority recruitment.

The millions of dollars it would take to litigate race-based admissions in the federal courts would be better spent on minority recruitment. Instead of padding the wallets of D.C. law firms like Williams and Connolly, this money would be better spent trying to increase the number of minority faculty members or studying how to make the University more attractive to minority applicants. The University should spend this money -- and much more -- to make Charlottesville the No. 1 destination for minority students. Instead of harping on the conditions of the past, University administrators should sell the promise of the future.

The University's debate over affirmative action is not an exercise in theory, nor is it carried out in the friendly confines of a classroom. Every year the admissions decisions made in Miller Hall have a significant impact on people's lives and dreams. And they are made against the backdrop of a terribly real legal system. History professor and NAACP Chairman Julian Bond says turning away from affirmative action would be "a cowardly retreat and shameless surrender." Perhaps. But it would be far worse for the University to irresponsibly ignore the facts of University admissions and the reality that affirmative action is becoming increasingly harder to legally defend. History so often has taught us that to draw a line in the sand and toss the gauntlet, though politically and emotionally appealing, is rarely the right course of action. This school must not sacrifice diversity on the altar of affirmative action.

(Sam Waxman's column appears Thursdays in The Cavalier Daily.)