Why Judges Can't Create Colorblind Campuses

The Supreme Court will never succeed in completely removing affirmative action from higher education.

The Sixth Circuit Court's ruling two weeks ago throwing out Michigan's ban on racial preferences in college admissions would definitely deserve a place of honor in any top 10 list of judicial sophistries. But even if the Supreme Court reverses the ruling, universities will still find artful ways to promote their sham diversity. Instead of seeking more court intervention, defenders of color-blind campuses might serve their cause better by simply demanding more university transparency.

The Sixth Circuit has been trying to thwart Michigan's quest for race neutrality in government hiring and admissions ever since two lawsuits challenging the University of Michigan's admission practices made a stop in its chambers en route to the Supreme Court about a decade ago. The Supreme Court eventually outlawed the blatant racial double standard that the school's undergraduate program employed but allowed its law school's more individualized consideration of race. However, Michigan voters in 2006 amended the state constitution by a 58-42 margin barring all discrimination—big or small—by race, sex, and national origin.

However, the Sixth Circuit has now ruled that Michigan's ban against discrimination is itself discriminatory. It violates the 14th Amendment's guarantee of equal protection because it leaves minorities who want racial preferences in admissions no option but to mount a counter referendum. But students who want, say, their family connections or their socio-economic background considered can lobby the admissions committee or the university officials or the governing board. "The existence of such a comparative structural burden undermines the Equal Protection Clause's guarantee that all citizens ought to have equal access to the tools of political change," the court averred.

But the same might be said, points out Roger Clegg of the Center for Equal Opportunity, of a Ku Klux Klan member who wants a whites-only admissions policy. Would the court have qualms about placing a "structural burden" on his rights?

Michigan's attorney general is appealing the ruling to the Supreme Court. If the court's conservative majority sides with him and rules against the University of Texas' race-based admissions policies in a separate case (to be decided any minute), opponents of affirmative action believe that a new age of color-blind campuses will dawn in the country.

But that is a triumph of hope over experience.

For starters, throwing out racial preferences that benefit minorities while leaving intact (as both Michigan and Texas do) alumni preferences that predominantly favor whites will not advance the cause of racial justice. Why? Because it will open minority seats to competition by whites, but not white seats to competition by minorities. Those who are serious about race neutrality have to scrap both simultaneously or lose moral credibility.

But if they don't like this reason, there are others.

Regardless of what the court decides, neither private nor public universities will give up racial preferences: private universities because the rulings won't apply to them—and public universities because they will ignore the rulings.

This is not a hunch. This is what they've always done.

The University of Texas, for example, pioneered the so-called 10 percent solution for the explicit purpose of getting around the 5th Circuit Court's ban on race. Under this solution, it automatically admits the top 10 percent of every school's graduating class, including inner-city schools, something that allows it to boost its minority numbers while pretending to be race-neutral.

The University of Michigan, meanwhile, has replaced race with its proxy, zip code. It filters applicants based on where they live, giving those who come from predominantly minority neighborhoods a leg up in admissions. The upshot is that, despite the ban, its minority numbers have barely budged, according to UCLA law professor Rick Sander, who obtained the university's admissions data through a Freedom of Information Request.

Forcing universities to give up such shenanigans and comply with court orders would require constant scrutiny and legal challenges by watchdog groups whom universities will easily outspend and outlawyer. And there are plenty of judges around eager to enable universities, as the Sixth Circuit demonstrates.

The best among bad options might be full disclosure laws requiring universities that receive federal funding to reveal what admission standards they use for which group—minorities, alumni, athletes, donors—along with their graduation rates. This will expose any admissions double standard whether toward minorities or rich white legacies and cause elite universities to risk their reputational appeal.

What's more, race-conscious admission policies produce an unusually high drop out rate among minorities by placing them in academic environments for which they are unprepared, Sander has found. Publicly available graduation rates will allow minority kids to pick colleges commensurate with their level of preparedness, preventing them from being set up for failure.

Universities are out of control, no doubt. But informed consumers might hem them in more effectively than court diktats.

A version of this column originally appeared in the Washington Examiner