Gratz & Grutter: Consequences and Commentary

Taken as a whole, the two decisions may signify the Court’s view that racial preferences are a temporary social expedient that cannot be permanently justified on the basis of the 14th Amendment’s Equal Protection Clause. Justice Steven’s public comments after the decision suggest that it was the Court’s reluctance to suddenly and entirely jettison a practice now used by many major institutions that explains its equivocal decisions, not its conviction about the legal merits of racial double standards.

But, as numerous commentators have pointed out, the Court’s reluctance to set a clear legal standard will exact a heavy toll on American individuals and institutions for years to come. Many schools will continue to mechanically admit all minority students under separate and lower admissions standards solely to engineer a preferred racial mix of students. Far from treating applicants as individuals, these schools will continue to view applicants first and foremost as fungible members of their racial group.

Click here to read Shelby Steele’s critique of the decisions.

For a discussion of the state of the law after Gratz and Grutter, read CIR General Counsel, Michael Rosman’s article in Jurist Magazine.

The real problem

Racial preferences are, at best, a false feel-good solution to a terrible problem: the breakdown of K-12 education at many schools populated by disadvantaged students. The challenge is to fix the deficient schools that make it difficult for many poor and minority students to compete for admission to selective colleges and universities. Using racial preferences to hide this problem only makes it easier for political leaders and education officials to avoid the tough choices necessary to improve elementary and secondary education.

Moreover, racial preferences create new problems. In denying all students the right to compete on an equal footing, these policies deprive some students the opportunity to attend a top-ranked college or university solely because of their skin color.

In addition, many minority applicants are routinely admitted according to much lower academic standards. While this approach may initially boost minority enrollment, minority students admitted by means of preferential policies tend to drop out at much higher rates. For African-American students at the University of Michigan undergraduate college, the drop out rate is 39%, more than double the 17% dropout rate for everyone else.

A 2004 Stanford Law Review article authored by UCLA Prof. Richard H. Sander presents a devastating critique of law school preferences. Sander shows that the use of double standards in the top tier law schools has a cascading effect that forces lower tier law schools to also use preferences. As a result, many minority law students have difficulty competing academically.

According to Sander:

“At American law schools that use large racial preferences, half of all black students end up in the bottom tenth of their first-year class…[t]his performance gap has nothing to do with race per se; whites who attend law schools where their credentials are far below most of their peers have pretty much the same types of troubles. The performance gap is a function of preferences.”

Read a Wall Street Journal article about Sanders’ study

Some schools are getting rid of race preferences

“STUDENTS AT TEXAS A&M SHOULD BE ADMITTED AS INDIVIDUALS, ON PERSONAL MERIT — AND ON NO OTHER BASIS.”– ROBERT GATES PRESIDENT OF TEXAS A&M UNIVERSITY

Though the Supreme Court held that schools may consider race under certain circumstance, the Court did not require schools to use race. Indeed, the Court’s rulings in Gratz and Grutter stressed that schools must explicitly consider whether non race-based admissions systems would achieve sufficient diversity without the explicit consideration of race. Some schools have concluded that racial preferences no longer are necessary or useful methods for achieving the educational benefits of a diverse student body.

Why do colleges use race preferences?

THE FACT IS THAT AFFIRMATIVE ACTION HAS BEEN A VERY EFFECTIVE RACIAL POLICY IN GARNERING MORAL AUTHORITY AND LEGITIMACY FOR INSTITUTIONS, AND IT IS NOW INSTITUTIONS–NOT INDIVIDUAL WHITES OR BLACKS–THAT ARE FIGHTING TO KEEP IT ALIVE.– SHELBY STEELE WRITING IN HARPER’S MAGAZINE

Even the supporters of race preferences agree that double standards based on race are inconsistent with fundamental fairness. Preferences judge individuals by race rather than their accomplishments and abilities. It seems curious, then, that such a peculiar institution as race preferences would be so common in American life.

However, while America cherishes its culture of individualism, no institution can remain credible if it is seen as being linked with the American past of segregation and slavery. The quickest, and easiest way for many institutions to protect themselves against public criticism is to engineer racially proportional hiring, admission, and promotion decisions. While this system may be an efficient way to protect big institutions from criticism, it does so at a great cost to individuals. These institutions reject some, accept others, and do injustice to all, all solely on the basis of skin color.