In writing for the majority in the U.S. Supreme Court's landmark 2003 ruling in Grutter v. Bollinger, Justice Sandra Day O'Connor found the University of Michigan Law School's use of affirmative action as part of its admissions process to be constitutional, so long as it is narrowly tailored and not reliant on a quota system (as was the downfall for Grutter's companion case, Gratz v. Bollinger, in which the court struck down Michigan's undergraduate bonus point system for minority applicants).
Ms. O'Connor qualified her answer, however, by conceding "race-conscious admissions policies must be limited in time." Specifically, she identified 25 years as the point at which "the use of racial preferences will no longer be necessary to further the interest approved today" — in essence tucking a "this court decision will self-destruct" disclaimer into the end of Part III of the opinion. Naturally, one would take this warning of affirmative action's non-infinite shelf life as a sign that such policies should slowly be weaned off as their necessity diminishes over the next quarter century.
Why, then, is the University of Wisconsin System, almost four years later, chartering a course in the opposite direction of the one outlined by Ms. O'Connor?
I refer to a proposal on the Board of Regents' agenda as they begin their monthly meeting today that would lessen the importance of class rank and increase the weight of life experience, special talents and, most ominously, race, in making admissions decisions. The proposal, intended to affect all UW System schools and modeled after the approach already used by UW-Madison, has often been referred to as an "individualistic" or "holistic" admissions method.
No matter what it's called, it's troubling. Exactly how much emphasis the regents would like to put on race is unclear, and any benchmark indeed would likely be unconstitutional per Gratz. But it does seem clear the intention is to swing the pendulum toward race playing an increased role.
To be sure, the regents have insisted strong academic qualifications will remain the most important factor in gaining admission to UW schools. Applications will be assessed on an individual basis to consider all criteria, abilities and characteristics of an applicant. In reading sound clips from the regents since they proposed the new admissions policy this summer, it is clear the board's members are well-versed in the Grutter decision, steeping their quotes in its verbiage: The plan is a "holistic" approach considering race as "one factor of many."
On the surface, that doesn't sound too bad. And for the most part, it isn't. The intended result of the program — a diverse student body boasting unique experiences and skills — is something very few would argue is not a worthy goal.
But differences of opinion emerge as to whether any means justify such a laudable end. For the regents, the inclination seems to be yes. If their heterogeneous student body is crafted through abject discrimination — the kind prohibited in spirit by the Fourteenth Amendment, if not by law for several more decades (though possibly sooner, given Samuel Alito's ascension to the high court in place of Ms. O'Connor) — then so be it.
And one is left to wonder why. It is not as if there are no alternatives to the regressive race-based approach the regents are considering. Texas A&M has boosted minority enrollment by using minority alumni as recruiters, as well as introducing hundreds of scholarships for first-generation college students, a group with heavy minority representation. Without considering race, these initiatives resulted in double-digit percentage gains in minority freshman enrollment in 2004 and 2005.
Similarly, the University of Washington, prohibited by law from taking race into account, looks at "family income, number in family, parents' educational level [and] high school free lunch percent." Economic-based criteria such as these will accomplish an end result similar to that of race-based policies. And so long as it is narrowly tailored, it ensures those who truly are disadvantaged — as opposed to those belonging to a group historically oppressed (but not necessarily so individually) — receive a fair acknowledgment of the barriers they have had to overcome. The regents' proposal does seem to put an increased emphasis on income along with race, to be fair.
Or UW could rely solely on merit, which would not confine the school solely to grades and test scores. The life experiences and special abilities that UW says it wants to weigh more heavily do reflect non-academic skills that may predict collegiate and life success. It's just that race holds no place in discussions of merit — unless the topic is sunburn-prevention ability, there is nothing meritorious in one skin pigmentation over another.
The message the Supreme Court sent in Grutter was clear: If your school uses race in making admissions decisions, and does so without a quota or points system, you can keep doing what you're doing. But know you will have to discontinue it in the not-altogether distant future.
UW would be wise to realize the case was anything but an invitation to implementing a new race-based affirmative action program in higher education.
Ryan Masse ([email protected]) is the editorial board chairman of The Badger Herald.
