On Tuesday, the Supreme Court will confront a fact that you won't find prominently mentioned in any high school civics book: Americans of Asian descent face racial discrimination when they apply to almost any selective university in the country. So do most whites. Asians and whites who wish to avoid being penalized for their color can apply to public universities in a handful of states that have banned or curtailed overt racial preferences. (The states are California, Florida, Georgia, Louisiana, Mississippi, Texas, and Washington.) Or they can choose a nonselective university. Or they can skip college. Or they can go abroad. Or else—tough.
Here is another fact that the civics texts won't play up: If not for pervasive and systematic race-based discrimination, black and Hispanic students would be few and far between in many of the country's top universities and professional schools. Some of those schools might look almost as if they were clubs for whites and Asians. If an elite university today wants blacks or Hispanics in anything like the proportions that its graduates will encounter in the real world, it must discriminate based on race, or else it must use other stratagems to similar effect. Or else—tough.
After dodging the issue for years, the Supreme Court will decide this term whether the University of Michigan has taken racial preferences too far. As my colleague Stuart Taylor Jr. noted recently, Michigan fixed its admissions standards so that a white or Asian applicant's A is treated like a black or Hispanic applicant's B. Is that amount of discrimination (for discrimination is what preferences are) too much?
Tuesday's oral arguments will be closely watched, and rightly so. In a larger sense, however, the outcome will not much matter: The Court stands no chance of finding stable, common-sensible ground. It faces a choice between two unpalatable extremes, with no peace or quiet in the middle. Under existing law, the Court cannot offer a way out. But Congress could.
Specifically, Congress could amend the 1964 Civil Rights Act to permit race-based preferences in private institutions of higher learning, while simultaneously banning preferences in public ones. The result would be fairer, more stable, and more logically coherent than any of the options available to the Supreme Court under existing law.
In an important new book ("Diversity in America: Keeping Government at a Safe Distance," to be published in April by Harvard University Press), Yale University law professor Peter H. Schuck argues that the government should speak clearly against discrimination, but that private universities should be given room to use preferences in search of diversity. "A racial preference mandated by public law is much more objectionable than one that a private entity decides to establish to reflect its own values and for its own purposes," he writes. I concur. Yet there is an entirely different, and even more compelling, rationale for a two-track, public/private approach.
Current law takes as its premise that each American has a personal right never—or almost never—to face discrimination based on race, color, or national origin. Race-based discrimination is like assault in the sense that even one case is too many.
Where jobs and public accommodations are concerned, that is probably a good rule. Few if any employers or enterprises need to discriminate in order to perform their core functions. Universities, however, are different. They are gateways to all other social opportunities. More important, exposing students to diversity—including racial diversity—seems a legitimate and arguably essential part of modern education's mission. In today's America, a university without blacks or Hispanics would look to many conscientious parents as educationally derelict as a university without economics or biology.
Now, no one wants to see Harvard set up strict racial quotas. But it seems just as unreasonable to say that when Harvard looks at an applicant, it can notice everything except race—which is still, like it or not, a defining social category in America.
One answer would be to say, as Justice Lewis F. Powell Jr. effectively did in the 1978 Bakke case, "Discriminate a little, but not a lot." Alas, a little turns out not to be enough. It often takes a heavy thumb on the scales to achieve what Michigan and other schools call a "critical mass" of black or Hispanic students. The middle ground that Powell sought does not exist. The result is that many selective universities discriminate a lot, even though the law says that discrimination should happen rarely or never. The result of that result: unfairness, divisiveness, hypocrisy, and general moral squalor.
The problem here is fundamental. The whole premise of the current anti-discrimination model is wrong. In higher education, the law should not seek to prevent discrimination in every particular case. It should seek, rather, to ensure that discriminators never dominate the market.
Antitrust law has been built for a century upon the insight that prevalence matters. Trustbusters worry only about practices that are so widespread—usually because of monopoly or oligopoly power—as to skew entire markets, or at least large portions of markets. If the little computer shop down the street cuts prices by large amounts or for particular customers, that's called a sale or a promotion, and it's fine. If Microsoft does the same thing, it's called predatory or discriminatory pricing, and it is not fine.
By the same token, if a single Mormon university decided to admit only Mormons, that would not be a big problem for non-Mormons. They would have plenty of other opportunities. If, on the other hand, all non-Mormon universities decided to admit only non-Mormons, that would be a very big problem for Mormons, because the educational market would be virtually closed to them.
In higher education, the central problem is not that some selective schools discriminate but that the vast majority do, and all in the same way. If you happen to be of Asian ancestry, you can apply to only a few places where the scales aren't weighted against you. If discrimination were rare and random, you could escape it. But when discrimination dominates the market, it is unfair and un-American.
Today's university system is, in effect, a mighty cartel of color-consciousness, an OPEC of unequal educational opportunity. The answer, however, is not to say that no college can ever take race into account; nor to say that all colleges can discriminate provided they avoid the word "quota." The answer is to bust the trust.
One way to achieve that end would be to establish a Higher Education Opportunity Commission that would work like the Justice Department's Antitrust Division. It would review universities' admissions policies with an eye toward ensuring that discrimination did not become prevalent in any one niche or region. Even to propose so intrusive and bureaucratic an approach, however, is to recognize its impracticality. Fortunately, there is a simpler way to skin the cat.
America is blessed with a vibrant mixture of public and private universities, in every region and every market niche. Although the University of California (Berkeley) may not be quite the same as Stanford, it is gloriously close. By the simple expediency of banning preferences in the public sector, the country would ensure a wide range of nondiscriminatory educational opportunities to students who seek a safe haven from color codes. At the same time, the rich assortment of private schools with race-conscious admissions policies would ensure an ample supply of chances for black and Hispanic students to enter the ranks of the elite, and equally ample chances for white and Asian students to rub elbows with them.
Proponents of color-blind admissions might not like private preferences, but they would be glad to know that the government, with its leading educational role and its unique symbolic importance, kept clear of them. Affirmative-action diehards might wish that state schools used preferences, but they would be reassured to know that private schools could continue promoting racial justice. Students might need to make compromises—travel farther, pass up a scholarship, not have a wrestling team—to find a school that let them either avoid preferences or benefit from them, but they would at least have the choice.
As of today, Congress and popular opinion remain wedded to the binary, all-or-nothing civil-rights model of old. Still, the disintegration of that model is fast opening the way for a fresh approach. Elementary physics dictates that two trains cannot pass on a single track; and today's policy is nothing if not a train wreck.