REGARDLESS OF HOW the Supreme Court rules this summer on affirmative action at the University of Michigan, its decision is bound to bring change to our racial spoils system. Because affirmative action is an intrinsically unstable practice, the awaited ruling, far from settling the issue, will only touch off yet another round of debate and reform in a continuing battle.
The cause of the battle is the obstinate fact that racial preferences are at odds with liberal principles. As a result, they generate irresolvable conflicts within liberal institutions. The early experiments in affirmative action were thought of as temporary suspensions of proper meritocractic procedure. But no one wants to think of himself as a temporary exception to the right way of doing things. So the advocates and beneficiaries of affirmative action have elaborated a series of postmodern, post-liberal justifications for racial preferences, which have opened the way for preferential thinking in nearly every aspect of political and social life.
The outcome has been a struggle between those who seek to expand affirmative action and those who seek to eliminate preferences. Already four states have banned affirmative action in public institutions. In the rest of the country, racial preferences have been taken far beyond the mere "plus factor" they were restricted to by the famous Bakke decision of 1978. And everywhere, an ideology of "multicultural diversity" competes with classic liberalism to define our social contract.
So far, the debate over the Michigan case has focused on what will happen if the Court prohibits racial preferences. Will colleges "re-segregate"? Will our streets and campuses be clogged with protesters? None of the scare scenarios will come to pass. Yet in the rush to envision a world without preferences, the real story has been overlooked: What will happen if the Court upholds racial preferences is actually far more dangerous.
Today, no one really knows whether diversity is a legitimate justification for affirmative action. It was Justice Lewis Powell's tie-breaking opinion in Bakke that first advanced diversity as a rationale for racial preferences. Since no other justice joined Powell's opinion, the legal standing of diversity is unclear. That points to a hidden problem. If the Supreme Court now unambiguously affirms diversity as a justification for affirmative action, its decision will do far more than simply freeze existing preferences in place. It will unleash diversity as never before.
Once diversity has acquired unchallenged legal standing, advocates of affirmative action will inevitably seek to extend its range. If diversity can justify racial preferences in university admissions, why not in the selection of jurors? What about preference programs for federal policymakers or even legislators? (Quota systems for female legislators have already been floated in Canada, Europe, and India.) Should there be preferences for females in the high school chess club, or for males on the cheerleading squad? Pro-androgyny feminists have already called for preference programs for male employees at day-care centers. And won't Muslim immigrants soon be coming into their own as a victimized minority entitled to preferences?
Once the principle of diversity has been affirmed, there are no necessary limits, and every demand for inclusion can be adjudicated. Republicans might even get into the act, with suits to force political diversity onto colleges and universities dominated by Democrats. The prospect of lawsuits to impose political diversity suggests what a mess we'll be in once the Supreme Court grants clear legal standing to a doctrine of group rights. Such a doctrine cannot help but operate in opposition to the principles of liberal individualism.
Once it accords constitutional standing to diversity, the Court will provoke a kind of slow motion crisis, in which even the structure of our government, not to mention principles like one-man-one-vote and equal protection under law, will be subject to fundamental renegotiation.
SO MUCH for the aftermath of a Michigan victory. But suppose the Court prohibits the use of racial preferences in college admissions. What will really happen then?
Better to begin with what will not happen. If the Supreme Court outlaws racial preferences in higher education, there will be no social unrest--no urban riots or torched college campuses. In the states that have abolished affirmative action in public higher education, no social upheaval ensued. Affirmative action was ended by court order in the relatively conservative state of Texas, and by the governor in Florida, but liberal California and Washington did the deed by referendum. They could do so because Americans everywhere oppose preferences. From the beginning, the practice was imposed by judicial and administrative fiat. The public will not rebel at the abolition of something it never wanted in the first place.
Academic affirmative action, then, is not the stuff of revolutions. Racial preferences come into play only at relatively selective institutions--at most, 20 percent of all colleges and universities. And an even smaller slice will feel the effect of national repeal, since many schools in states without affirmative action have adopted race-neutral ways of increasing minority enrollment.
Even black Americans seem likely to accommodate themselves to the banning of preferences. The truth is, nearly all fairly worded polls show that between one-third and two-thirds of African Americans (along with lopsided majorities of all Americans) reject affirmative action. National Journal columnist Stuart Taylor Jr. concluded as much from a careful survey, earlier this month, of polling on affirmative action in higher education. For example, the Washington Post/Kaiser Family Foundation/Harvard University racial attitudes survey in the spring of 2001 found that only 12 percent of African Americans agreed that "race or ethnicity should be a factor" in college admissions, hiring, and promotion, while 86 percent of African Americans agreed that such decisions "should be based strictly on merit and qualifications other than race/ethnicity." The upshot of Taylor's survey is that the black community is at best divided on the question of academic affirmative action and on balance arguably opposed. No doubt a Supreme Court decision against preferences would precipitate protests on some campuses. Yet even at a relatively radical school like Berkeley, opponents of affirmative action lack broad student support, and have been unable to mount mass demonstrations since California abolished racial preferences.
BUT IF ENDING racial preferences in higher education won't kick off a revolution, what it will do is spur measures designed to restore minority enrollment to something like its current levels. Those measures will fall into three broad categories--outreach, percentage plans, and thinly veiled defiance--and will occasion the new battles in our long-running war over preferences.
Before academic affirmative action was turned into a quota system, it was meant to be outreach. The idea was to identify promising minority students in high school (or earlier), and help them gain the skills and experience needed for admission to college. The most welcome result of an end to racial preferences would be a return to genuine outreach. In fact, it was only the abolition of affirmative action by Proposition 209 that forced the University of California system to create the Berkeley Pledge, an outreach program designed to help low-income students with no family history of higher education qualify for college the right way--without preferences. And some of the less glamorous campuses in the University of California system, like U.C. Riverside, have been particularly successful, since Prop. 209, at operating sound outreach plans.
The percentage plans adopted in Texas, California, and Florida present a more problematic alternative to affirmative action. By guaranteeing a place at a state school to students who graduate in, say, the top 8 percent of their high school class, percentage plans restore a significant minority presence to colleges, and do so on a race-blind basis. Because of percentage plans, every public college in California and Texas now has an enrollment of underrepresented minorities that exceeds 10 percent. That's important, because the University of Michigan claims that 10 percent is the level of minority representation required to create a "critical mass" of diversity on campus.
So percentage plans effectively ward off the scare scenarios purveyed by the advocates of affirmative action. And, in addition to being race-blind, percentage plans have another advantage: They reward hard work by students at the weakest high schools.
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.