Editor's note: An earlier version of this essay was published by the Pope Center for Higher Education Policy.
Ashley Thorne, executive director of the National Association of Scholars, recently posted an essay on Minding the Campus (“Dismissing the Reality of Affirmative Action”) that was both kind and accurate.
The Gallup Organization and Inside Higher Ed co-hosted a conference in Washington on September 15, “Not out of the Woods: Colleges, Diversity and Affirmative Action after a Year of Protest and Court Battles.” Most of those in attendance were university officials of one kind or another.
Ms. Thorne, who attended the whole conference (I did not), said those officials were
determined to ignore the results of a Gallup survey for IHE showing that nearly two-thirds of Americans oppose affirmative action in college admissions. About 75 to 100 attendees, mostly college administrators, focused on reaction to the Supreme Court decision last June 23rd— Fisher v. University of Texas at Austin – in which the court upheld racial preferences. Educators and student affairs administrators found the survey results mysterious but chalked them up to white privilege, bias, and ignorance.
Only one person on the conference program represented the opinion of the public to this audience. That was Roger Clegg, president of the Center for Equal Opportunity, who spoke in the opening session on the court’s decision. Inside Higher Ed editor Scott Jaschik introduced him saying, “For those who think you’re safe, Roger’s watching you.”
I’m grateful to Mr. Jaschik for inviting me, even if I was the only one on my side of the aisle there, and I could not have asked for a better encapsulation of the message I wanted to send those attending: You’re being watched.
Ms. Thorne then summarized what I had to say — which I will do, too, in a moment — and concluded:
[Mr. Clegg] said his organization will bring FOIA requests and lawsuits against colleges that use racial preferences without jumping through all the necessary hoops.
The room seemed tense after Clegg spoke, but his fellow panelists and the audience basically ignored the substance of his remarks and did not refer to him again the rest of the day. After that panel, the atmosphere settled into one of complacency and the assumption that everyone agreed that racial diversity has educational benefits.
Even during his panel, another speaker, Art Coleman (Managing Partner and Co-Founder, Education Counsel) said, “Forget the law.” He said if you want to do the “educationally right thing,” you should figure that out first, then the law. The University of Texas, he said, had told the Supreme Court what the law should be.
All accurate, as I said.
More on What I Said
On my panel were, in addition to Art Coleman, Art Rodriguez (dean of admission and financial aid at Vassar College) and Harold Levy of the Jack Kent Cooke Foundation.
I began by agreeing with Art Coleman that it is important to keep in mind that none of the Court’s decisions on the use of racial preferences in university admissions — Bakke, Gratz, Grutter, and Fisher I and II — has reversed any of the other decisions. And those decisions, while unfortunately keeping the door open for racial preferences, have also put constraints on their use. In a word, schools must document that the use of such preferences is the only way to achieve the “educational benefits” of a “diverse” student body. I had elaborated on those constraints for IHE here (Fisher II), as I had earlier for the Chronicle of Higher Education here (Fisher I).
And despite Mr. Coleman’s rather inartful suggestion that schools “Forget the law,” he’s actually made clear over the years that they should not do so, and has himself described the hoops that need to be, and should be, jumped through. He’s not the only left-of-center person to recognize this reality; Mark Yudof and Rachel Moran made the same point, post–Fisher II, in the Chronicle of Higher Education.
I corrected Mr. Coleman’s suggestion that all of the justices accept the purported “educational benefits” of “diversity” as being a “compelling” enough interest to justify racial discrimination. There’s certainly no reason to think that the Chief Justice, let alone Justice Alito, let alone Justice Thomas, would be unwilling to overturn Grutter.
I also corrected Mr. Coleman’s suggestion that treating people without regard to skin color somehow deprives them of their “dignity,” to use Justice Kennedy’s word of the moment, which Mr. Coleman had quoted.
And then, as Ms. Thorne notes, I structured the rest of my remarks around the three choices that schools now have in the wake of Fisher II with regard to the way they use admission preferences on the basis of race and ethnicity.
The first and best choice is simply to end the use of racial preferences. This is not a complete pipe dream: Most schools, indeed, do not use preferences, if for no reason other than the fact that they are not terribly selective. One hopes that some schools, whose use of preferences in only marginal, might be persuaded to take the pledge and adopt colorblind admissions. Consider, after all, the strong pros for that approach, and the strong cons against continued discrimination; Ms. Thorne summarized what I said this way:
- Not factoring race into admissions is what most people favor, as the Gallup poll showed.
- There are no legal problems with not using racial preferences.
- It is fairer. Poverty and privilege come in all colors. Using skin color as a proxy for disadvantage is unjust.
- It avoids the costs of discrimination, including stigmatization, resentment, mismatch, and encouragement of an unhealthy obsession with race that spills over into protests.
The second choice schools might adopt is to continue to use racial and ethnic admission preferences, but to do so in a way that is legal — that is, that jumps through the hoops that the Supreme Court has set out. On this point, I noted that the courts might be headed to requiring extensive documentation of the necessity for using racial preferences before they can be used, analogous to the “disparity studies” now required prior to using such preferences in government contracting. Professor George La Noue, of the University of Maryland/Baltimore County, is an expert on the latter and has made this point; I also noted that these studies can be expensive and must be frequently updated.
The third choice available to schools is, I noted, the worst choice but the one that many would, alas, make: To use racial preferences illegally.
Morality aside, the problem with breaking the law here is that you’ll be caught. My organization, the Center for Equal Opportunity, has filed many, many FOIA requests with universities over the years, and that’s not going to change. We will ask for all documents related to the various hoops that schools are supposed to jump through: for example, the studies mentioned above that Justice Kennedy wants done, the consideration of race-neutral alternatives, the periodic review of racially preferential measures, and so forth. Schools that respond that they have no such records are admitting that they have not jumped through those hoops; you cannot do all this without a paper trail.
And they’ll be sued. CEO will turn over this information to a litigating organization, or to Edward Blum’s lawyers, or at least to friendly members in a state legislature, and the fun will begin.
Brisk Business Likely
Initial indications are that we’ll have plenty of business. Inside Higher Ed had a story recently on its latest survey of college and university admission directors, and it contains much of interest.
For example, “in a potentially notable finding, a significant minority of college admissions directors now say (in contrast to past surveys but consistent with the views of many advocates for Asian-American applicants) that their colleges generally admit only Asian applicants with higher grades and test scores than other applicants.” That is, four out of ten directors at both public and private schools indicated that they believe Asian-American applicants are held to a higher standard at “some” places; and 41 percent of public-school respondents and 30 percent of private-school respondents admitted that this was the case at their own university or college. That is, indeed, “notable.”
Another juicy tidbit has to do with the Supreme Court ruling in Fisher II. The new IHE report notes that the Court “cited the research the school did over the years to show why it needed to consider race in admissions — and the decision said that colleges need to have conducted such studies to consider race.” But, the report continues, the recent “survey results suggest that relatively few colleges have done or plan to do such studies.” Indeed, “only 13 percent of colleges said they conducted studies similar to those the Supreme Court cited as making the Texas approach legal. And only 24 percent said they planned to either start or continue such studies.” And this, the report correctly notes, “could make some colleges vulnerable to lawsuits.”
To look at it another way, three out of four schools interpret Fisher as giving them a green light to engage in admissions discrimination for the foreseeable future, and only 4 percent said they planned to change admissions practices in light of the Court’s ruling.
Trustees and alumni should take note of this, by the way. No matter how sympathetic one is to political correctness, it’s irresponsible for a school to break the law and set itself up for a ruinous lawsuit.
Which brings us back again to my main message for the college officials: You’re being watched. If you use racial preferences, we’ll find out. You’ll then be required by the FOIA laws to document that you have jumped through the hoops that the Supreme Court has set out; and if you can’t do that, you will be sued, and you will lose.
Roger Clegg is president and general counsel of the Center for Equal Opportunity.