Grutter Accommodates the Intractable

Nathan Glazer

T he remarkable parallels between the Bakke decisions of 1978 and the Gratz and Grutter decisions of 2003 suggest that nothing, or almost noth-

ing, has changed in 25 years, in the Supreme Court, and in the divided nation that the Court to some extent reflects. The slimmest possible majority of five justices agreed that some degree of taking account of race in making admissions decisions in institutions of higher education was constitutional and legal, but only on the narrow ground of the educational value of racial "diversity" in American higher education. Another and different slimmest possible majority of five agreed that one could go too far in taking account of race, particularly when one approached a quota, or a balance, for each race. One .Justice alone formed part of the two majorities, and wrote what appears to be the deciding, or most controlling, decision, expanding on the virtues of diversity in higher education in a society in which, in the words of this decision, "race unfortunately still matters."

In 1978, only Justice Lewis Powell formed part of the two majorities. In 2003, only.Justice Sandra Day O'Connor. The parallel between the two sets of decisions is all the more remarkable in that only two justices survive from the Bakke court.

So what is it that has not changed? Two things: First, African-Americans will not be present in any substantial numbers remotely comparable to their one-eighth of the nation's population if academic achievement measured in tests and grades is the controlling criterion for entry into selective institu- tions of higher education. Second, the American people were and are com- mitted to overcoming the heritage of slavery and discrimination and making African Americans full and equal participants in the key areas of American life. Once one puts these two facts together, there is no way of moving be- yond race today. This is what the administrations of institutions of higher educat ion--undergraduate, graduate, and professional--realize; this is what leaders in politics, business, the armed forces and other key sectors of the society understand; and this is why there was such an overwhelming support ~br the University of Michigan's position in the scores of amicus curiae briefs that were submitted to the Supreme Court. (I participated in one of these amicus briefs, organized by Glen Loury, written by leading social scientists

Nathan Glazer is a professor of education and sociology, emeritus, at I Iarvard University. Among his books is Affirmative Discrimination: Ethnic Inequality and Public Policy, which was first published in 1975, and republished with a new introduction in 1987.

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14 Academic Questions / Summer 2003

who po in t ed ou t the limitations of the "percentage" plans used in Texas, California, and Florida, and favored by the Bush administration.)

There is no ques t ion- -as the readers of this journa l are in the best posi- tion to u n d e r s t a n d - - t h a t the present si tuation offends the clear language and intention of the Constitution's 14th Amendmen t , and o f the Civil Rights Act of 1964, and that the ground that the Supreme Court has marked ou t to permit the cont inued use of racial criteria in admissions offends logic, as the dissent ing just ices ably po in ted out. The f ramers o f the 14 th A m e n d m e n t never d r e a m e d o f p re t e rence fi)r blacks; we know that any idea of prefer- ence, o f a "quota," for blacks was ru led ou t by the advocates of the Civil Rights Act o f 1964. And yet a state institution has been allowed by the Su- p reme Court to operate what is in effect a quota, since it is clear f rom the evidence presented on the practices of the University of Michigan Law School that if the n u m b e r of blacks admit ted as a propor t ion of the enter ing class seems to be falling too far below some reasonable figure (7 to 10 pe rcen t seems abou t right to the University of Michigan Law School) , extra efforts will be under taken to raise the percentage, and one assumes that if the per- centage is running within the acceptable range, the admissions commit tee will cease extra efforts with satisfaction.

One can rail against the failure of the Court to tollow the Consti tution and the statutes, criticize its logic in accep t ing the ra ther nar row and l imited definition of "diversity" that it now re-affirms and re-establishes as the per- missible basis for racial preference---or one can c o m m e n d its c o m m o n sense as the supreme legislator in accepting a position that tor the most part the American people can live with. This is our Court, as it has evolved, and we live with it. Strict construction, whatever its attraction in logic and ideology, has never prevailed against the facts and logic of reality. W h e n it has, the results have been disastrous.

In this case, the slimmest possible majority dec ided that a measure of pref- erence for blacks and minorities is what is best for the country. It relied on the only basis available in previous decisions on which racial preference can be .justified. The slim majority did not go to extremes in directly legislating tbr the good of the nation as it unders tands it, and some of the commit ted critics of racial p reference in higher educat ion have more or less accepted what the cour t has done as abou t the best that can be done in the current situation.

One such commit ted critic, the political journal is t Rober t Zelnick, chair- man of the . journal i sm d e p a r t m e n t at Boston University, writer o f a major book critical o f affirmative action, research fellow of the Hoove r Institute, asserted his con t inued opposi t ion to racial p re fe rence in admissions, "as a s tudent o f law . . . . an educa tor . . . . [and] a citizen," bu t cont inued: "All that said, I was not totally displeased by the Supreme Court decision permit t ing the University of Michigan to admit a 'critical mass' of minority students."

Thernstrom, Glazer, Wood, La Noue, and Krauss 15

Observing the effects of the el iminat ion of racial p reference in California, Texas, and Florida, he writes, "I have seen the future and it does not work." What h a p p e n e d in these three states in which racial p re fe rence was elimi- na ted by r e f e r e n d u m , judicia l decision, or executive action, was that this abolition "proved politically untenable . The most vocal political communi - ties and their academic allies d e m a n d e d that the old racial balances be re- stored. Overnight, the test of the new system became how quickly it could be made to resemble the old one . . . . Texas gua ran teed university places to anyone gradua t ing in the top 10 pe rcen t of his or he r high school class. Florida tried race-conscious scholarships. UCLA Law School offered admis- sion pre fe rence to students electing to study Critical Race Theory. Cal-Ber- keley t h r e a t e n e d to a b a n d o n the SAT's." In effect, racial p r e f e r ence was restored in disguise; the new systems of colorblind admission were tested by how well they pe r fo rmed in selecting respectable percentages of blacks and Hispanics. Further: "The new schemes were far riskier to quality educat ion than the old system of preferences, which at least identified the most quail- tied students of each race."

"Eventually, foes of race preference would have laced a Hobson's choice: Accept the new practices. Battle the new evasions in the courts . . . Or turn the issue into a bruising national political ha t t ie - -mobi l iz ing majority sup- port against the minorities. Against these choices, even a bad Supreme Court decision is to be prefer red ." ("Bad Law, Less-Bad Results," advert isement , back cover of I l Au~ts t 2003 National Review.)

Other opponents o f racial p re fe rence will indeed take the legal route, or the political route. Noth ing the Supreme Court has done will infringe on the possibilities of abolition by r e f e r e n d u m ~ t h e results of the re fe renda in Caliti)rnia and Washington State still stand---or the effects of possible future r e f e r e n d a .

Much has been made of Justice O 'Connor ' s final c o m m e n t on a possible end to racial preference . (1 wonder what is its position in constitutional law? I assume it is considered only a remark, not legally controlling.):

It has been 25 years since Justice Powell first approved the use of race to fimher an interest in student body diversity . . . . Since that time, the number of minority applicants with high grades and test scores has indeed increased . . . . We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.

Justices Thomas and Scalia, the two most commit ted opponents of racial p re fe rence on the Court, j o i n e d themselves to this last sentence of Justice O 'Connor ' s decision.

But how m u c h change can we expec t in the next 25 years? As against Justice O 'Connor ' s optimism about improvement in the last 25 years, Justice Thomas wrote: "In recent years, there has been virtually no change, for ex-

16 Academic Questions / Summer 2003

ample, in the proportion of law school applicants with LSAT scores of 165 and higher who are black. In 1993, blacks constituted 1.1% of law school applicants in that score range, 11.1% of all applicants . . . . In 2000 the com- parable numbers were 1.01% and 11.3%. No one can seriously contend, and the court does not, that the racial gap in academic credentials will disappear in 25 years." This discouraging lack of progress in recent years is paralleled in many other areas of education.

Perhaps the most powerful argument of the opponents of racial prefer- ence has been that we should put our efforts into eliminating that gap be- tween blacks and others rather than accommodate it by finding means to increase the percentage of blacks despite its continuance. It is to the credit of Abigail and Slephan Thernstrom that they have not only made this argu- ment again and again, but have now written a substantial book exploring the reasons for the gap and what can be done about it (No Excuses: Closing the Racial Gap in Learning, Simon & Schuster, 2003). It is giving away no secret to report that they do much better in documenting the gap and analyzing some of the reasons for it than in proposing programs to reduce or eliminate it. No one expects very much from the recent "No Child Left Behind" legis- lation. Every reform effort vapidly runs into forces limiting it.

One can expect change- -we have already seen a good deal, as in the proportion of serious academic courses taken in high school for example, but it seems we will have to live with the presence of very substantial differ- ences in the academic per formance of students from various ethnic and racial groups for a very long time. Seventy-five years ago, the fact that a group that composed 3 percent of the American population made up very substan- tial proportions of the enrollment of selective colleges and universities was seen as a problem, to be dealt with by limiting quotas: The percentage of .Jews in selective institutions is still many times their percentage in the popu- lation, but we have learned to live with this disproportion without alarm. Twenty-five years ago Asians were still considered among the minorities for whom a percentage of places in the university of California-Davis Medical School was reserved. Today, the various Asian groups, less than 5 percent of the American population, make up four or five times that percentage of the students in selective institutions, with very little in the way of public notice or response. We have learned to live with over-represented minorities. Can we learn to live with underrepresented ones? (We will inevitably have tbem if we have over-represented minorities.)

We seem to have evolved rough and ready measures that satisfy the institu- tions of higher education, more or less satisfy the underrepresented minori- ties, and which the Supreme Court will accept. Thus, half the percentage of blacks in the population seems to be what institutions aim for, half of that for Hispanics----even though Hispanics now number Ks many as blacks. We use the term "minorities," yet the issue is really one of African Americans and

Thernstrom, Glazer, Wood, La Noue, and Krauss 17

their place in American society. It is they who set the central historical ques- tion of how to achieve a more equal society. Hispanics are today, for the most part, immigran ts and r e c e n t immigrants . We expect that immigrants will make their way through acculturat ion and assimilation, and are not a la rmed when we read that a lesser percentage graduate from high school and go on successfully to college. We expect that to change with assimilation, and it does. In any case, the problem set by Hispanic unde rach ievemen t academi- cally is not as severe as that set by blacks. Despite the unders tandable hin- drances of non-English language and recent immigration, Hispanics, in almost all comparisons, do better academically than blacks.

Blacks are the p rob lem for America. Constitutionally and legally, only a very narrow basis R)r preference now exists, the assumed virtues of diversity for education. But in the most innovative part of her decision,Justice O ' C o n n o r goes far beyond the justification of race pre fe rence on the basis of its pre- sumed educat ional advantages:

These benefits [of diversity] are not theoretical but real, as inajor Aanerican busi- nesses have made clear that the skills needed in today's increasingly global market- place can only be developed through exposure to widely diverse people, cultures, ideas, and viewpoints. [She here retiers to brietg by the 3M and General Mot(ms corpo- cations.] What is more, high-ranking retired officers and civilian leaders of the United states military assert that "[biased on [their] decades of experience," a "highly quali- fied, racially diverse oIticer corps . . , is essential to the military's ability to fullill its principle mission to provide national security." [[ lere she refers to a brief by leading military officers.] The primary sources ~br the Nation's officer corps are the set,rice academies and t h e , , . ROT(;.

Ih)w could the Uni ted States gove rnmen t have effectively opposed what the University of Michigan was do ing when it was doing m o r e or less the same at West Point, Annapolis, the Air Force Academy?

The United States as a working democracy must include substantial per- centages of African Americans. .Justice O ' C o n n o r again: "In o rde r to culti- vate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership is visibly open to talented and qualitied individu- als of every race and ethnicity." If the gateway to certain occupat ions and leadership positions is substantially controlled, for historical reasons, by aca- demic achievement, why then, o ther means will be found, a round academic achievement , to including blacks in the key institutions of society. This is what the institutions of h igher educat ion have done. They operate in a messy and covert way, but they are doing the job, and it is superior to the alterna- t i v e s - t h e exclusion of blacks f rom the key institutions of society, or fixed quotas based on population, Let the messy way continue.