Court Gives New Life to Quota Camouflage

By Terence J. Pell

Washington Post, June 27, 2003

Imagine a New Year’s Eve celebration at high noon on the steps of the U.S. Supreme Court.

As soon as the court released its twin decisions on the admissions policies of the University of Michigan last week, giddy spokesmen for higher education broke out the rhetorical champagne. Lee Bollinger, the former president of Michigan, captured the spirit of the celebration the following morning when he opined, “The court’s decision is a great victory for American higher education, and for the nation as a whole.”

Actually, the court’s 6-3 ruling on undergraduate admissions in the case of Gratz v. Bollinger is reason for personal and institutional shame. In that ruling, the court struck down a succession of three different systems crafted by the university to add the equivalent of a full grade-point to the records of applicants of preferred races. Gratz outlawed a decade’s worth of deceit by the UM admissions office. Now Michigan has to live with the stigma of being found by six justices to have methodically and unconstitutionally denied admission to thousands of applicants based solely on the color of their skin. More troubling than their refusal to acknowledge their own past discrimination is the alacrity with which college officials instantly discarded the court’s clear instructions on the future use of race in admissions. Within hours of the decision, Michigan officials and others made clear they viewed last week’s decisions as little more than a fig leaf with which to hide new racial double standards. The court gave schools a menu of choices, but they rejected all choices except one – and thereby laid the groundwork for more litigation.

How is this happening?

It’s true, of course, that in the 5-4 Grutter v. Bollinger decision, a majority upheld the diversity rationale, legalizing the Michigan law school’s informal system of “individualized” and “holistic” reviews of applications. But the court also instructed the universities to first seek alternatives on a serious and ongoing basis, so that race preferences will be used only as a last resort, and eventually not at all.

If such exhaustive searching took place, at least two major universities were able to complete it in the amount of time it takes to issue a press statement.

Under a previous (and now overruled) lower court ruling, the University of Texas School of Law had been forced for seven years to make a serious effort at achieving diversity without discrimination. And it succeeded. Last year the school boasted that “its entering first year law class has the strongest Mexican-American and African-American population in years” – in a class that is “one of UT Law’s most academically accomplished.”

Yet the court’s published rulings were still hot from the copying machines when University of Texas President Larry R. Faulkner announced that the law school was scrapping these achievements and going back to racial preferences. If the justices were serious about a good-faith examination of race-neutral alternatives, then they’ve just been slapped in the face.

Most surprising, Faulkner said the University of Texas would impose these preferences on undergraduate admissions in 2004. I also heard Marvin Krislov, the lead lawyer for the University of Michigan, promise that such an undergraduate program would be instituted at Ann Arbor within weeks.

These two schools are asking us, and ultimately the courts, to believe that they can set up an individualized, “holistic” undergraduate admissions process for every applicant to Texas (21,800) and Michigan (25,000). If all universities follow suit, and they are true to their word, America will soon have more admissions officers than Iraq has allied soldiers.

Their reaction only lends credence to the objection of Justice Antonin Scalia, who called the court’s approved road map for diversity “a sham to cover a scheme of racially proportionate admissions.” On this point, even two of the most liberal justices agree.

Justice David H. Souter, in a telling dissent in Gratz, admitted that the undergraduate “college simply does by a numbered scale what the law school accomplishes in its ‘holistic review.'” Justice Ruth Bader Ginsburg also wrote that “institutions of higher education may resort to camouflage” and to “winks, nods and disguises.”

Will Americans buy camouflaged quotas? A 2001 Washington Post poll found that 86 percent of African Americans and 94 percent of whites agreed that race or ethnicity should not be a factor in college admissions. Americans are coming to hear Justice Clarence Thomas, who says that “every time the government places citizens on racial registers and makes race relevant to the provision of burdens or benefits, it demeans us all.” Word games and camouflage are not likely to sit well with Americans of all races who hold fast to the notion of equality.