The Magazine

Liberalism vs. Diversity

The high stakes in the Supreme Court's affirmative action decision.

Feb 10, 2003, Vol. 8, No. 21 • By STANLEY KURTZ
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Nevertheless, percentage plans still contravene the principle of merit in university admissions. They allow a student with poor test scores and modest grades at an uncompetitive school to jump ahead of a hard-working student with high test scores and decent grades at a competitive school. And percentage plans are motivated, in great part, by a desire to engineer racial balance. All of which may provide grounds for legal challenges in the future. But perhaps the most important thing about percentage plans may be that they are instituted--and can be modified--democratically. Thus, percentage plans offer the Supreme Court an opportunity to shift at least a portion of the debate over academic admissions from courts to legislatures, where the results will be determined by the public, instead of imposed from on high.

The wrinkle is that percentage plans work only for state systems, and only in places where a substantial minority population attends schools that are racially relatively homogeneous. But the real constituency for affirmative action is made up of left-leaning faculty members and administrators at America's elite colleges and universities. These people are in a panic because most elite colleges draw on a national pool of students, and therefore cannot use percentage plans. Over and above outreach programs, these schools are almost certain to adopt a posture of barely concealed defiance to any Court-ordered end to affirmative action.

Almost as though it were putting out an advertisement for such defiance, the New York Times ran a front- page story in December on the techniques used by admissions officers at Rice University in Texas to circumvent a court-imposed ban on racial preferences. According to the Times, Rice was afraid of "openly" defying the ban, and so resorted to "creative, even sly ways" to meet its minority enrollment goals, while still pretending to be race-blind. The Rice admissions committee, for example, circumvents the ban on asking an applicant's race by encouraging students to discuss their "cultural traditions" in admissions essays. Then the committee singles out and discusses minority applicants, using a kind of informal code.

At some point after the elimination of affirmative action, suits will no doubt be brought against elite private colleges for their refusal to abide by the ban on preferences. Unfortunately, it will be a lot tougher to get the goods on clandestine discrimination like that at Rice than it was to expose the de facto quota system at a large public university like Michigan. One look at Michigan's numerically weighted--and publicly available--admissions criteria, and the quota fairly leaps off the page. Unless you're a sympathetic reporter from the New York Times, good luck getting the dirt on a small private college's "creative" and "sly" strategies for restoring preferential discrimination. So the worst effect of a decision against Michigan will be to drive racial preferences underground, where they are less accessible to legal remedy or democratic debate.

Despite these difficulties, the contours of a post-affirmative action world are both knowable and livable. With luck, public opinion will favor high quality outreach programs and relatively modest percentage plans. Legal challenges will follow. But at least the principles of race-blindness and individual rights will control the terms of the debate. In the event of a Michigan victory, by contrast, the controlling principle will be an ever-expanding doctrine of diversity.

The Supreme Court, then, finds itself facing a choice not between simple abolition of affirmative action and mere confirmation of the status quo. What the Court will really do this summer is create a framework for the next phase of our cultural and political struggle over the meaning--and even the legitimacy--of liberal democracy.

We stand at a fork in the road. On the one hand, the Court can set aside the diversity rationale, thereby affirming classic liberalism and initiating a series of arguments over the practical application of race-blind principles. On the other hand, the Court can sanction the doctrine of diversity, and thus well and truly open Pandora's Box. Once diversity has acquired unquestioned legal sanction, we will be forced to confront what, to some degree, is already playing out: a creeping constitutional civil war--a battle for the soul, and even the existence, of liberalism--whose outcome is impossible to foresee.

Stanley Kurtz is a research fellow at the Hoover Institution.