IT SEEMS THE EDUCATION ESTABLISHMENT is now prepared to concede that racial preferences in college admissions are really all about discrimination for its own sake. When preferences ended in California and Texas in 1997, educators predicted (mistakenly) that minority enrollment would drop dramatically. Some resorted to rhetoric not heard since the '60s -- darkly forecasting a "resegregation" of higher education. Such reactions made clear what many had long suspected: Racial preferences are used in admissions not to ensure a heterogeneous student body but to increase minority enrollment. By revealing their true purpose educators have inadvertently strengthened the legal case against preferences.
It is unlawful to treat applicants differently by race in order to achieve a certain racial mix of students. It has been illegal for the last 20 years, since the Supreme Court's decision in University of California Regents v. Bakke. Justice Lewis Powell wrote that while it was permissible to use race as a factor to assemble an intellectually diverse student body, it was impermissible to use race to try to achieve any specific racial mix of students. This, Powell said, the Constitution "clearly forbids," for it amounts to racial discrimination.
Defenders now claim that preferences are justified because, first, minority enrollment would plummet in their absence and, second, they serve a greater social good. Increasing the number of minority students helps increase the number of minorities in the professions, i.e., the upper class. This argument, that preferences promote a social good, concedes that affirmative action has wandered far from its constitutional domain. Furthermore, it turns out that educators' predictions about the resegregation that would follow the end of racial preferences in California and Texas were wildly overblown. Minority enrollment remained constant or even increased at all but a handful of elite schools. At the flagship law and medical schools, minority enrollment did drop in the first year following the end of preferences. But, as demonstrated in the Center for Individual Rights' recent report, Racial Preferences in Higher Education, minority enrollment has since rebounded, although not to pre-1997 levels.
Indeed, it turns out that at one school after another, in California, Texas, and elsewhere, racial preferences are not necessary to ensure the presence of minority students. And still, states use them anyway. Consider the state of Washington, which has a 12 percent minority population. If the University of Washington Law School didn't use preferences, it would enjoy a 17 percent minority admissions rate. By using preferences, it doubles minority enrollment -- far more than necessary for the intellectual diversity Powell's Bakke opinion had in mind.
It matters why educators take race into account. Certain purposes are constitutional. Insisting that educators stick to narrowly drawn, permissible purposes ensures that race plays a determinate -- and generally, minor -- role in admissions. In admitting that it uses race for an unconstitutional purpose, the education establishment inadvertently has called attention to the large and unlawful role that race has come to play in deciding who gets admitted.
Powell's opinion imposes strict limits on the role that race can play in benefiting -- or harming -- any particular applicant. At most, he thought, race could be a "plus" factor that suggested a particular individual would make a distinctive contribution to the intellectual life of the school. But race could not be the predominant reason one applicant was preferred over another. Nor could race serve as the basis of a dual admissions system. Because of longstanding racial disparities in standardized test scores, many elite schools employ two admissions standards to avoid excluding minority applicants. Until recently, the University of Michigan used separate admission grids for minority and non-minority applicants. Now Michigan, and many other schools, simply add points to an index score -- points that very often overwhelm other factors.
Lawsuits against the University of Washington and the University of Michigan, scheduled to go to trial this year, will show just how significant a factor race has become in admissions. Fortunately, students and their parents, trustees, and college alumni no longer need to wait for the outcome of high-profile lawsuits to begin reforming college admissions. A provision of federal civil rights law permits school officials who knowingly and clearly violate existing law to be held liable in their individual capacity for the damages resulting to applicants rejected illegally on the basis of skin color. Increasingly, this threat is more than academic. Last year, for example, a federal court in Ohio held college officials, including trustees, liable in their personal capacities for an illegal racial set-aside.
The prospect of personal liability for clear violations of constitutional law may give students, parents, and trustees a great deal of leverage in forcing worth-while reforms at colleges and universities without the need for further litigation.
Terence J. Pell is senior counsel at the Center for Individual Rights, which represents plaintiffs in lawsuits opposing racial preferences.