But most importantly, socio-economic-based affirmative action would leave intact the constitutional guarantee that any government consideration of race should be "irrelevant and therefore prohibited." 'A 25-Year License to Violate the Constitution'

By Reid Alan Cox

The U.S. Supreme Court has spoken, and according to a slim five justice majority in Grutter v. Bollinger, No. 02-241, "race unfortunately still matters." In fact, despite constitutional and statutory prohibitions to the contrary -- namely, the Equal Protection Clause of the Fourteenth Amendment and Title VI of the Civil Rights Act of 1964 -- apparently race matters enough that a majority of the High Court is willing simply to "take [colleges and universities] at [their] word" that they need to discriminate on the basis of skin color and ethnic heritage in order to admit and enroll racially diverse student bodies.

That, after all, is the result of the Court's approval of race-conscious admissions policies. According to those five justices, the "core purpose of the Fourteenth Amendment" -- not to mention the Civil Rights Act of 1964 -- "to do away with all governmentally imposed discrimination based on race" can wait, at least for another "25 years from now." Thus, for the next generation, our nation's best and brightest will be taught what might be their very first personal lesson in "equality" when admissions officers take special note of their race and then weigh their applications accordingly.

Of course, such an exception to the constitutional "norm of equal treatment of all racial and ethnic groups" is not really necessary to ensure integrated student populations or to reap the educational rewards of "diversity." The experience of California universities post-Proposition 209 demonstrates that colorblind admissions do not cause the "resegregation" of even the most selective colleges and universities.

For example, "underrepresented" minority students comprise a full 19.9 percent of this past year's first-year class at Boalt Hall School of Law at the University of California-Berkeley, which is widely regarded as the most selective public law school in the country. That means that, even without race-based affirmative action, Boalt Hall was able to admit and enroll minority students representing six percent more of its entering class than the University of Michigan School of Law (the program that was the subject of the lawsuit) was able to enroll on average between 1995 and 1998 (13.675 percent) with racial preferences. And the law schools on the other affirmative actionless University of California campuses boast similarly strong minority enrollments -- 16.3 percent in the first-year class at the University of California-Davis and 12.9 percent in the first-year class at UCLA.

Moreover, even if race-conscious affirmative action does lead to increased numbers of minority students on campus, it does virtually nothing to help those who are truly competing at a disadvantage -- students from lower socio-economic backgrounds. Quite simply, most recipients of racial preferences in college admissions are not downtrodden, as noted by William Bowen and Derek Bok in their pro-affirmative action book The Shape of the River.

In fact, these former presidents of Princeton University and Harvard University, respectively, found in their study that an overwhelming 86 percent of blacks at selective institutions hailed from middle or upper-middle class families. In other words, the beneficiaries of race-based affirmative action are not the children from inner-city Los Angeles, but instead are most likely to be the sons and daughters from suburban Santa Monica.

Thus, preferences based upon an inability to pay for extra tutoring help, standardized test prep courses, and even the college application fees themselves "would benefit a quite different group of African-Americans and Latinos" than the racial preferences used by most colleges and universities today, according to Richard Kahlenberg of the Century Foundation. And this is to say nothing of the numerous white, Asian, and Arab students from working class backgrounds who compete at an even greater disadvantage because of their lack of financial means and no possibility of racially preferred admissions.

In fact, if student body "diversity" is to mean anything, it is socio-economic-based, rather than race-based, affirmative action that is the most glaringly necessary. According to a study from the aforementioned Century Foundation, students from the bottom quarter of U.S. incomes account for only 3 percent of the enrollment at 146 of America's elite colleges and universities. These truly disadvantaged students are dwarfed on campus by students coming from more affluent families in the top quartile of incomes, who now comprise 74 percent of the student populations at these selective schools.

Not only would preferences based on socio-economic status benefit those achievers of all colors who were able to overcome true disadvantage, but it would also ensure fully integrated campuses -- both ethnically and economically. The Century Foundation study demonstrates that preferences given to students from lower income backgrounds would open the doors of universities across the country to numerous first generation college students while, at the same time, maintaining levels of "underrepresented" minority students at 10 percent or more. But most importantly, socio-economic-based affirmative action would leave intact the constitutional guarantee that any government consideration of race should be "irrelevant and therefore prohibited."

While it may be "unfortunate" that race still matters in the United States, it should be of even greater concern to the Court and the American people that we now have to wait another generation for the Constitution to matter, too.


Reid Alan Cox is the Assistant General Counsel of the Center for Individual Freedom and authored the Center's amicus curiae brief before the U.S. Supreme Court in Grutter v. Bollinger and Gratz v. Bollinger. Another version of this piece appeared in the Los Angeles Daily Journal on July 8, 2003.

July 17, 2003
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