Last year's Supreme Court decisions on affirmative action, Gratz and Grutter, are dubious as constitutional law, bringing to mind what John Hart Ely said about Roe v. Wade: "[I]t is not constitutional law, and gives almost no sense of an obligation to try to be." There was at best a cosmetic difference between the University of Michigan undergraduate school's crude "20-points-extra for minority applicants" (which the Court struck down) and the Law School's "holistic" and disingenuous preferences (which the Court upheld). The idea that the Law School has a "compelling state interest" in these racial and ethnic preferences is utterly inconsistent with the Court's suspect classification-compelling interest jurisprudence now extending back over many decades.

Yet the Grutter decision does not require public colleges and universities to have racial preferences in admissions, much less in faculty hiring or promotions. The decision merely permits admissions preferences. So the question is thrown back to the universities, or to the state legislatures, to decide about preferential affirmative action as a matter of policy. And in this article, we suggest that racial preferences, at least in higher education, have proved very bad as a matter of policy.

First, if you are going to give racial preferences, you have to identify people by race. It is not only invidious for the government to do that, it is increasingly impossible as people marry and have children outside the racial "affirmative action" boxes.

Second, racial preferences are bad for students and for educational institutions themselves. Preferences dilute admissions standards that, while far from perfect, are much better than "race" as admissions criteria. Preferential admissions tend to lower educational standards too, as schools try to disguise the educational gap between those admitted preferentially and those admitted by standard criteria. One of the worst outgrowths of racial preferences is that students admitted through such preferences are systematically mismatched educationally. A generation of minority students, who would have done well, or certainly no worse than average, at colleges where they would have been admitted on their merits, have instead been "cascaded" upwards to colleges where their preparation is significantly below average and where, entirely predictably, they do poorly.

Preferences, moreover, lead to identity politics and racial segregation on campus; they promote nihilism about academic quality; and they create a culture of dishonesty which inevitably spills over into many aspects of educational life. This article urges public - and private - colleges and universities to hold students and faculty of whatever race or ethnicity to the same high standards, and to reject the educational politics of racial and ethnic division which are implicit in preferential affirmative action.


Constitutional Law

Date of this Version

March 2004