Whether you like or hate affirmative action, one thing about it is becoming increasingly clear: It’s based on a myth.
That myth is the notion that university admissions committees consider every application individually. If the public and the courts didn’t believe this myth, affirmative action as we know it today would not be possible.
Consider how racial preferences were reincarnated after the Supreme Court’s 1978 Bakke decision. That decision held that rigid number-based policies created an unconstitutional two track admissions system for minorities and whites. It also held that affirmative action was not justifiable as a means of addressing past discrimination.
However, in a part of the Bakke opinion that no other member of the majority joined, then-Supreme Court Justice Lewis Powell left a small bit of wiggle room that clever admissions officers later ratcheted into a Potomac-sized gap.
He wrote that “educational pluralism” (a.k.a. “diversity”) could sometimes be a compelling interest that justified race preferences. Careful not to extend this exemption too far, Powell said race could only be “one among many” factors-such as hobbies, backgrounds and future plans-that universities might consider in assembling a student body.
This is where the “individual consideration” myth was born. Powell said that in order to qualify under the “educational pluralism” exemption, admissions policies had to “be flexible enough to consider all pertinent elements of diversity in light of the particular qualifications of each applicant.”
This very issue became the source of disagreement in the Supreme Court’s bizarre split on the two University of Michigan affirmative action cases in June. The court struck down the university’s undergraduate policy and upheld its law school’s policy. Why? The law school’s policy was vague enough to fake individualized consideration.
The undergraduate policy awarded applicants a certain number of points for various traits, such as GPA, SAT score and extracurricular accomplishments. Of the 100 points necessary to gain admission, Blacks, Hispanics and American Indians were automatically granted 20 points.
The justices didn’t like these rigid numbers. Writing for the majority, Justice Rehnquist put it bluntly: “The current [undergraduate admissions] policy does not provide the individualized consideration Justice Powell contemplated.”
The law school, on the other hand, engineered a policy so mind-numbingly vague that it was able to fudge its way past the Supreme Court. Careful to avoid the q-word, the law school accepted what it called a “critical mass” of minorities. This critical mass varied between 12 and 20 percent-numbers specific enough to accomplish the law school’s quota-like purposes, but vague enough to let it claim in court that it considered all the merits of each application. The absence of specific numbers and the flexibility to consider each application were critical to the law school’s success.
How feasible is this careful, individual consideration in practice? The University of Michigan itself provides the answer. And you don’t have to look far. The undergraduate committee actually argued in briefs to the court that individual consideration of applications was impossible! The committee said there were too many applications and too few counselors to look at all the factors that go into diversity.
Justice Rehnquist addressed this argument directly: “The fact that the implementation of a program capable of providing individualized consideration might present administrative challenges does not render constitutional an otherwise problematic system.”
Despite the Supreme Court’s belief to the contrary, not even Michigan’s law school, with its small size and vague policy, was able to do much better. If the law school had truly examined applicants individually for diversity, it would have admitted people with interesting life experiences-like second languages or unique familial situations-at the same rate as minorities.
But race was more than just one factor of diversity at the law school. It was THE factor. Minorities who fell in the middle of the applicant pool had a 100 percent acceptance rate, while their white counterparts only had a 22 percent acceptance rate. No other “diverse” characteristic gave such an incredible guarantee of admission.
The point was clearest at the bottom of the law school’s applicant pool. Applications from whites with low LSAT and GPA numbers basically got chucked in the trash without a second look-far less than 10 percent were admitted. Obviously, no individualized consideration took place for low-end applicants. That is, of course, unless those low-end applicants were minorities. They were not only considered, but were admitted at rates of more than 80 percent!
What all this means is that the individualized consideration required by the Bakke decision never took place at either of the Michigan schools, and never will in the future. Under the court’s decision in the law school case, admissions officers will be able to conceal blatantly discriminatory policies behind layers of vague legalese about “flexible” consideration guidelines.
Affirmative action diehards will argue that since truly individualized consideration is impossible at schools the size of Michigan, the courts should let the schools use other policies to admit minorities. Maybe those diehards are right. Maybe the Constitution does set an impossible standard. But, then again, maybe wiggling out of the Constitution was never supposed to be easy.