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By granting review last week in two widely debated cases challenging the use of racial and ethnic preferences in University of Michigan admissions, the Supreme Court was not looking for trouble. It was confronting an unduckable problem. And that is good news for everyone. It is certainly good news for the lower courts, which are badly split on the issue. That’s why no one was truly surprised that the Court agreed to hear Gratz v. Bollinger, which involves undergraduate applicants, and Grutter v. Bollinger, which addresses law school admissions. Indeed, given the confusion below, the importance of the issue, and the understandable skepticism of a majority of the justices about racial and ethnic preferences, it would have been baffling had the Court not granted review. If the justices rule (probably next June) that such discrimination is illegal, it will also be good news for the rule of law and for all Americans, of whatever skin color or ancestry. Which is to say that a decision banning discrimination is dictated both by the law and by sound policy. Let’s consider each in turn. READING THE LAW The 14th Amendment prohibits any state actor (including a university) from “deny[ing] to any person within its jurisdiction the equal protection of the laws.” When this became part of the Constitution in 1868, foremost in everybody’s mind, of course, was denial of equal protection on the basis of race. And note that they didn’t limit the guarantee of equal protection to those of a particular race or races. That not clear enough? Well, a university and its students also enter into a contract whereby tuition buys instruction, and the Court ruled in Runyon v. McCrary (1976) that 42 U.S.C. �1981 prohibits racial favoritism in such contracting. Congress expanded that law in 1991 to cover “all benefits, privileges, terms, and conditions of the contractual relationship.” Still not clear enough? The clincher is Title VI of the Civil Rights Act of 1964, which provides, “No person in the United States shall, on the ground of race, color, or national origin, . . . be subjected to discrimination under any program or activity receiving Federal financial assistance.” The University of Michigan, like all other state schools, gets federal money. Not much wiggle room there. In fact, there is no easy or persuasive way around these laws. What a majority of the Supreme Court did in Regents of the University of California v. Bakke (1978) was ignore the language of Title VI and say that it went no further than the somewhat more loosely worded equal protection clause. Then, Justice Lewis Powell Jr. — in an argument that no other justice has ever endorsed but that the University of Michigan now relies on completely — concluded that achieving “diversity” in the student body is so compelling a government interest that it justifies racial discrimination. DIVERSITY WOES There are three problems with this approach. First, while it is barely plausible that Title VI, which explicitly prohibits “discrimination,” might still allow discrimination if it is aimed at remedying other discrimination, no nonremedial purpose (such as diversity) can possibly be squared with the statutory text. But universities today — including Michigan — typically don’t make the remedial argument. After all, an 18-year-old applicant today would have been born in 1984, two decades after the passage of Title VI banned racial discrimination in education. Second, carving out a diversity exception — or what amounts to a social science exception — to the equal protection clause would be unprecedented and foolish. Yes, the University of Michigan was able to concoct a controversial, dubious report that found a correlation between improved educational outcomes and a diverse student body. But, likewise, the state of Virginia “presented 4 educators, a psychiatrist and 2 psychologists” — including the chairman of the department of psychology at Columbia University — to argue, in a companion case to Brown v. Board of Education (1954), that segregation improved educational outcomes. And, likewise, there are experts today who will argue that sexual segregation is (a) good for educating boys and girls, or (b) bad for educating boys and girls. The decision whether to poke holes in the constitutional ban on racial discrimination cannot be left to social scientists or, worse, justices voting on which social scientists they find most congenial. Third, even if Title VI and the equal protection clause are ignored, there remains 42 U.S.C. �1981, which the Supreme Court has yet to interpret as allowing, rather than prohibiting, racial and ethnic discrimination in contracting. This is a good place to point out that the discrimination at issue in Gratz and Grutter made an enormous difference in who did and did not get into the University of Michigan: Among undergraduate applicants with identical mid-range SAT scores and high-school grades, a student’s chances of admission varied from nine out of 10 to less than one out of 10, depending on the student’s race. Among law school applicants, the discrimination was even worse. There’s no way that the Supreme Court will honestly be able to square the University of Michigan’s admissions programs with the text of the Constitution or the applicable civil rights statutes. But that’s good news. Let’s turn to why ending admissions preferences will benefit all Americans, and especially African-Americans. A NEW AMERICA America has made remarkable — astounding — progress in the last generation on civil rights. While bias still exists, the single most important requirement for continued improvement in racial relations is mutual respect, which is possible only if people believe that everyone is being held to the same standard, regardless of skin color and ancestry. Or, to put it the other way, there is bound to be resentment, stigmatization, finger-pointing, and recriminations when the government says that whites and Asians have to meet these standards, but Latinos have to meet only those standards, while African-Americans have to meet the lowest standards of all. How is this message-that lower standards are the only way to treat African-Americans “fairly” — supposed to advance African-Americans? The other major way in which America has changed since the mid-1960s — that is, besides the dismantling of the Jim Crow system; the banning of discrimination in education, housing, employment, voting, public accommodations, you name it; and the greater opportunities available to minorities (and women) in every field — is that our society is increasingly multiethnic and multiracial. It is no longer possible to paint the nation in black and white alone; it is also Latino, and Asian, and Middle Eastern, and Native American. This is true not only in the aggregate but also for individuals, more and more of whom point proudly to ancestors of more than one race or ethnicity. As ill-advised as it is to pick winners and losers on the basis of ethnicity in a biracial society, it becomes completely unworkable and divisive in a society such as America has become. How do we decide which groups are entitled to preferential treatment? How do we decide who belongs in which category? Why should we assume that all blacks are disadvantaged, or that no whites are, or that all Latinos will add viewpoint diversity but no Asians will? Rather than focusing on which groups over the course of American history have suffered the most, it makes a lot more sense for college admissions officers to ask which individuals today have the most promise by looking at their potential and what they have accomplished and overcome in their own lives. BETWEEN YALE AND JAIL Ending racial and ethnic preferences by universities will force society to confront the ugly underlying problems that explain why so many African-Americans and Latinos reach 18 years of age not ready to compete academically with whites and Asians. Only when preferences were ended in California did that state become serious about ensuring that no child is left behind in its public school system. Likewise, we are better off confronting cultural problems — like high illegitimacy rates among African-Americans (about seven in 10 are now born out of wedlock) and the widespread belief that studying hard is “acting white” — than pretending such problems don’t affect academic performance. In the meantime, the choice is not between Yale and jail. The Center for Equal Opportunity’s studies show that, even without preferences, there are plenty of higher educational opportunities available for everyone. Indeed, students of all races will gain more from attending colleges that fit their scholastic records. Where preferences have ended — in California, Texas, Florida, and Washington — the states’ higher education systems have remained diverse, and within-school academic performance gaps between blacks and whites have, unsurprisingly, narrowed. If it is wrong to assume that African-Americans or members of any other group are fungible — and it is — then we cannot somehow train people to deal with each other by trying to create an artificial microcosm that “looks like America.” It is even more futile to think that schools can teach tolerance by deliberately discriminating themselves, especially when doing so creates a student body with built-in racial disparities in academic qualifications. Racial and ethnic preferences in college admissions can be justified only by embracing stereotypes. The diversity argument is built on stereotypes about what people think, while the remedial argument is built on stereotypes about what people have experienced. And even if you find the use of stereotypes persuasive, the costs of relying on them overwhelm any possible benefits. Most obviously, this sort of discrimination is unfair to the better-qualified students who are not selected because they have the wrong skin color. But the costs do not end with those individuals. We all pay the price. Racial discrimination in college admissions sets a terrible legal, political, and moral precedent. It stigmatizes the so-called beneficiaries in the eyes of their classmates, teachers, and themselves. It fosters a victim mind-set and encourages separatism among African-Americans. It compromises the academic mission of, and breeds hypocrisy within, colleges and universities. It mismatches students and institutions, guaranteeing failure for many of the former. It papers over the real social problems that make so many African-Americans academically uncompetitive. And it requires unsavory activities like deciding which minorities will be favored and which will not, and how much blood is needed to establish group membership. Oh, happy day for us all when the Supreme Court ends this nonsense. Roger Clegg is general counsel of the Center for Equal Opportunity in Sterling, Va. The center filed a brief — posted at www.ceousa.org — in Grutter v. Bollinger, urging the Supreme Court to grant review. Clegg can be reached at [email protected].

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