Is O'Connor's Ruling an Oncoming Train . . .
From the July 7, 2003 Dallas Morning News: . . . or the light at the end of the affirmative-action tunnel?
12:00 AM, Jul 8, 2003 • By TERRY EASTLAND
THE BIG HEADLINE in the Michigan affirmative action cases is that the Supreme Court, in an opinion written by Justice Sandra Day O'Connor, sustained the use of race in admissions policies. Less publicized is the fact that the court also held, near the end of its ruling in the law school case, that such policies "must be limited in time." If you ask who is to make sure the policies are "limited in time," the court doesn't answer that. But once you consider the way federal law enforcement works, it is apparent the administration could play a vital role in bringing preferences to an end.
Justice O'Connor began the passage by observing that "a core purpose" of the 14th Amendment was to do away with "all governmentally imposed discrimination based on race." She said the admissions policy she and her colleagues had just upheld--and, thus, all policies like it--would be at odds with the 14th Amendment if they were to continue forever. Such policies, therefore, "must be limited in time," meaning they must come to an actual "termination point."
Justice O'Connor set forth how her clumsily named "durational requirement" could be met. She suggested "sunset provisions in race-conscious admissions policies and periodic reviews to determine whether racial preferences are still necessary to achieve student body diversity." She also noted that universities in California, Florida, and Washington--"where racial preferences in admissions are prohibited by law"--have experimented with a wide variety of alternative approaches." And she said that "universities in other states"--meaning the 47 where racial preferences in admissions now aren't prohibited by law--"should draw on the most promising aspects of those "race-neutral alternatives."
Now, what you won't find in that passage is the enforcement invitation it fairly extends to the Education Department. The department's Office for Civil Rights has authority to enforce Title VI of the Civil Rights Act of 1964. Under Title VI, colleges that receive federal funds can't discriminate on the basis of race or ethnicity.
The office routinely has enforced Title VI in terms of what the court says about the 14th Amendment. When the court first addressed the use of race in admissions in the Bakke case, the office conformed its Title VI enforcement to the dictates of the new decision. Now that the court has spelled out its "durational requirement," is there any reason the office should fail to implement it?
The Office for Civil Rights has clear authority to insist on putting sunset provisions in the admissions policies and on conducting periodic reviews to determine whether preferences are "still necessary" to achieve diversity. Unfortunately, the court didn't spell out the criteria for answering that question. But the court's language leaves no doubt that schools currently using preferences are obligated to try "the most promising" race-neutral alternatives now available. They can't simply continue as they have. Presumably, if race-neutral alternatives produce some, if not the same, diversity, the "need" for preferences will diminish.
In March, the office published "Race-Neutral Alternatives in Postsecondary Education: Innovative Approaches to Diversity." The document reported on the two main alternatives now in use--those that operate at the point of admission (like the X-percent plans in Texas and Florida) and those that aim to develop students academically (like the expansion of advanced placement courses to underserved high schools in the same two states).
The office is as prepared as any government agency could be to encourage the move to race neutrality that the court has envisioned. All that is left is for it to assert itself and issue new guidance on Title VI.
The Education Department isn't obliged to be deferential to higher education, as the court was in the law school case. "We take the law school at its word," wrote Justice O'Connor, "that it would 'like nothing better than to find a race-neutral admissions formula' and will terminate its race-conscious admissions program as soon as practicable." The department won't have to take anyone's word but will be duty-bound to prod and push toward race neutrality.
If the Education Department doesn't assert itself--if timid White House officials hold it back--preferences in admissions aren't likely to encounter much resistance, save from litigants whose cases will take years to resolve. The administration has an opportunity to govern in behalf of right principle--and in furtherance of the court's judgment.
Terry Eastland is publisher of The Weekly Standard.