For a program that affects only a relative handful of America's 2,200 colleges and plays a role in a vanishingly small number of people's educational careers, affirmative action has a seemingly unlimited power to excite controversy. President Bush's announced opposition to the University of Michigan's policy of race-based admissions "quotas" (whether Michigan's policy does or does not amount to a quota system is both the crux of a Supreme Court case and a topic of considerable debate) has again raised the question of whether racial preferences can be made to dovetail with the Constitution. But it also raises, or should raise, a larger question about the position of state universities in American academia.
On the political front, Bush has little to lose. With Trent Lott having fulfilled his genetic destiny to act as a smarter Republican's Sister Souljah, the President can maneuver a more conservative position on race preferences. The carping of Democrats provides little more than soothing background noise to the discussion. Nor does Bush stand to lose much in terms of the black vote, which he never had and never will have. Coupled with the Lott sacrifice, Bush's brief on behalf of the plaintiffs in the Michigan case is designed to play straight down the center—in favor of the racial diversity and opportunity favored by a well-meaning nation, suspicious of the stigmas and bitterness that attach to affirmative action.
The President's characterization of the Michigan system could hardly fit better with conventional wisdom. Michigan's baroque point system, which gives more value to one's race than to one's SAT scores (themselves a valued if dubious mark of scholarly distinction) appears to the naked eye to be both a quota system and a violation of the Bakke case's confusingly Solomonic decision that race could be a factor but not a determining factor in college admissions. Finally, the University of Texas system's innovative policy of automatically admitting the top 10 percent of all high school graduates—instituted while Bush was governor—provides cover from the charge that Bush is indifferent to minority education issues. (This imperfect but effective system also demonstrates that creative, color-blind policies can address minority under-representation more effectively than centralized affirmative action policies.) Racial, gender, or even economic diversity, however, isn't the end of the problem.
What makes Grutter v. Bollinger worthy of consideration before the U.S. Supreme Court in the first place is Michigan's status as a state school. Many private universities use some form of affirmative action without complaint, because as private institutions they are free to make their own rules. State schools, however, are funded by taxpayer dollars and thus subject to scrutiny about a whole range of fairness issues. The affirmative action discussion, either pro or con, is always couched in the language of fairness.
But why is it fair to reject anybody whose taxes are paying the tab for a university? Ingrained in the principle of public education is the idea that it is available to one and all. At the grammar school and high school level, virtually every state specifically guarantees a public education to every child. There are no admissions criteria involved. Whether you agree or disagree with public education in principle (and most Americans do agree), the central argument for its fairness is that all taxpayers benefit from it. Why, then, should it be any different at the university level?
The Michigan controversy is impossible to resolve not because of differences about race fairness (only Trent Lott and Robert Byrd would disagree that a diverse and race-fair society is in all our interests), but because it is built on a paradox. Everybody is expected to pay for state universities. But only a happy few, for reasons of either race or artificially devised standards of competence, are allowed to use the facilities. That's a standard we wouldn't accept in any other public service, and it raises the question of whether the state can ever make distinctions among applicants without perpetuating the unfairness it's supposed to address.