The Supreme Court Can't Fix University Admissions Policies

Universities have a history of ignoring the law to engineer the right ethnic mix on campus.


The charming assumption of the plaintiffs in Fisher v. University of Texas—a case the Supreme Court recently agreed to hear—is that if five robed justices behind mahogany desks tell universities to stop discriminating by race in their admissions policies, universities will stop. (Fisher involves a white female student allegedly passed over for admission in favor of less-qualified minority candidates.) Yet regardless of what the justices say, university officials will give up their firstborns before they let go of their beloved racial preferences.

Fisher backers hope that the presence of John Roberts and Samuel Alito on the bench means that the Supremes will shut the door that their ruling in 2003's Grutter v. Bollinger flung open to racial preferences. In Grutter, the Court accepted the University of Michigan's argument that "diversity" was a compelling state interest. And consideration of race on an individualized basis was constitutionally acceptable to promote it.

After Grutter, the University of Texas went to town.

A little history: The 5th Circuit Court's 1996 Hopwood ruling had banned the University of Texas from explicitly using race in admissions, prompting then-Gov. George W. Bush to sign Texas' pioneering "10 percent solution," a race-neutral way to help state schools keep their minority numbers up. Under his solution, Texas automatically admits the top 10 percent of every school's graduating class, including inner-city schools. Even liberals admit that this strategy was better for campus diversity than the regime of straight-up preferences.

But once Grutter gave the green light to race-based admissions, UT decided that the 10 percent strategy was not yielding a "critical mass" of minority students in every major and every classroom. Hence, it tacked its old race-based standard onto the new scheme. The upshot? The university's Hispanic and African American population went up from 23.23 percent to 26.65 percent—a whopping 3.42 percentage-point bump.

Racial preference opponents are hoping that the Supreme Court will overrule the racial component of Texas admissions and—if they get lucky—the Grutter decision itself. But what if they get their wish? Will that usher in a new era of colorblind campuses?

Not a chance.

For starters, the 10 percent solution is something of a scam, one that seeks a specific racial outcome via race-neutral means. But the instructive case of Michigan's public universities offers more evidence as to what happens when race-ban activists get what they want: nada. In 2006, outraged by the Grutter ruling, Michigan voters approved Proposition 2, a ballot initiative that outlawed race in government hiring and college admissions. Undeterred, University of Michigan President Mary Sue Coleman defiantly declared that she "will find ways to overcome the handcuffs that Proposal 2 attempts to place on our reach for greater diversity."

She wasn't bluffing.

She enlisted the College Board, the company that administers the SAT, to develop Descriptor Plus, a geo-demographic tagging service, to filter applicants. This involves using demographic factors other than race to identify under-represented "neighborhood clusters." Here's how it works, in theory: Descriptor Plus could identify, say, two clusters of low-income students living in single-parent homes, one cluster in a predominantly black Detroit ZIP code and another in a majority-white ZIP code in upper Michigan. The University of Michigan could then decide that it wants to give the Detroit cluster greater preference than the one in upper Michigan, thus achieving a racially balanced student body without openly using race.

Such flouting of voter will would be bad enough. But UCLA law professor Richard Sander maintains that the university's claims that it had given up the explicit use of race for Descriptor Plus were "total bulls***." Sander, a self-avowed liberal who opposes preferences because he believes they harm minorities, filed a Freedom of Information request to obtain Michigan's admissions data for 2008. The university's minority numbers had barely budged, something that was hard to explain, even with Descriptor Plus. The only way this could have happened was if the university was still explicitly using race, Sander's regression analysis revealed.

This demonstrates that universities will use proxies, subterfuge and outright violation of the law in their quest for the "right" student mix. And it raises a troublesome question: Is there some way to get them to stop? There's nothing foolproof, unfortunately. Going through courts and legislatures is an exercise in futility. For example, getting the University of Michigan to give up race requirements would require more time-consuming FOIA requests to gather information, then filing lawsuits (in which the university would outspend and out-lawyer its opponents). Meanwhile, the legislature would have to engage in an intrusive examination of the university's books, inevitably inviting accusations of abrogating academic freedom.

The best option might be to open up university admissions to public scrutiny through full-disclosure laws. Just as publicly traded companies are required to disclose accurate financial information to investors, public universities should be required to declare what admission standards they use for which groups (including, incidentally, children of alumni and donors, the other big beneficiaries of preferences) along with each group's graduation rates. This would force the universities to defend any blatant double-standard in public. And smart kids who felt that the university was diluting its standards too much might choose other schools—as might minority students who feel the university is setting them up for failure.

This solution is far from ideal, of course. But realism might be a better friend in fighting this battle than starry-eyed appeals to the Supremes.

Reason Foundation Senior Analyst Shikha Dalmia is a columnist at The Daily, where this column originally appeared.