Color Us Neutral
Jun 9, 2003, Vol. 8, No. 38 • By TERRY EASTLAND, FOR THE EDITORS
It's hard not to notice that most of the race-neutral alternatives the Department of Education is publicizing are found in Texas, California, and Florida. There is a reason for that: Those states were forced to abandon racial preferences--which meant, if they were to pursue diversity, they had to do so by race-neutral means. A court (the federal appeals court for the 5th Circuit) told Texas to quit using racial preferences. A majority of the people in California (voting for Proposition 209) told California to use them no more. And a savvy governor (Jeb Bush) employed an executive order to tell Florida that the era of racial preferences was over.
Education officials clearly believe that race-neutral approaches will eventually yield racial and ethnic diversity--meaning an integrated student body. The department doesn't contend, however, that this integration must be defined numerically. The Office for Civil Rights thus parts company with Michigan and other schools using race-based policies that require a "critical mass" of underrepresented students in a class if the educational benefits of diversity are to be secured. For Michigan, the chief educational benefit is supposed to be a transformation of the attitudes of all students, especially those in the majority. "Race-Neutral Alternatives" doesn't critique that idea of diversity--which is vigorously disputed in the Michigan litigation. Both Justice and Education have shied away from the issue, no doubt because President Bush has at times seemed to support diversity as a tool of social engineering. So a still broader conversation on diversity has been left for others to join. Soon enough, we'll know whether the Supreme Court has engaged it.
"Race-Neutral Alternatives" correctly notes that "any race-neutral program is unlikely to produce racial diversity with the precision that using race will"--meaning the precision achieved by a critical-mass quota. And some race-neutral alternatives have drawn criticism on grounds that they aren't really race-neutral. Class-rank and percentage plans in particular are said to be constitutionally dubious. They use race-neutral criteria, goes the argument, yet those criteria were chosen in order to favor certain groups--and disfavor others. But wherever one comes down on that issue, the class-rank plans at least have the merit of not treating individuals differently on account of their race.
The conversation the Education Department has begun is worth having precisely because it is past time that colleges and universities stopped treating applicants in a racially discriminatory manner. "We've spent a lot of time defining the present [preferential] system," said Gerald Reynolds, the assistant secretary for civil rights, during the Miami conference. "Why can't we spend time on this?" The nation will be able to spend a lot more time on race-neutral alternatives if the Court renders--as it should--an unambiguous judgment against racial preferences.
--Terry Eastland, for the Editors