How I Learned to Love Quotas-New York Times Che aeu york cimes com June1,2003 How I Learned to Love Quotas By JEFFREY ROSEN Not long ago, I had an unexpected opportunity to explain to Justice Sandra Day O Connor why I've changed my mind about affirmative action. I had been invited to give a talk about racial preferences for the justices of the Supreme Court of India, who were in Washington on a judicial exchange program. When I arrived at the conference room, I found, to my surprise and alarm, that the assembled Indian justices were accompanied by discussion. The thought of presuming to give an academic lecture about affirmative action in front of the e their hosts, Justices O'Connor and Stephen G. Breyer, who decided at the last moment to come along for th woman who represents the swing vote on the rehnquist Court-- and who will soon decide the fate of ffirmative action in America--was too harrowing to contemplate. So i abandoned my notes and chose instead to appeal to O'Connor in personal terms, describing why I had long been skeptical of affirmative action in higher education and why i recently have come to support it-not for moral or social reasons but for purely practical ones. As I sat on the stage trying to decide what to say to O Connor, I reflected on my change of heart. I had opposed quotas as a constitutional matter ever since studying the Supreme Court's Bakke decision in college, because I could never reconcile the reality of affirmative action as it is actually practiced with the version of affirmative action that the Supreme Court said was permissible. In his Bakke opinion in 1978, Justice Lewis F. Powell Jr said that schools and universities couldn 't pursue ethnic diversity for its own sake, but only as part of the broader educational goal of achieving intellectual diversity - he called it"the right to select those students who will contribute the most to the robust exchange of ideas. But I could never accept that racial diversity and diversity of viewpoint were so strongly correlated. If schools were truly interested in achieving a robust exchange of ideas, why would they limit preferences to African-Americans and Hispanics? Why not reach out to evangelical Christians and Iranian refugees as well? After becoming a law teacher a few years ago, I found that my constitutional doubts about affirmative action were joined by pragmatic ones. Race, I learned from classroom experience, is an imprecise and often unsatisfying proxy for intellectual diversity. I,ve had a few moments in class when the unique perspective of an African-American student was invaluable to the discussion - like the time when a student in a criminal-procedure class described the indignity that he experienced after being pulled over for"driving while black. But there have been many other moments when the views expressed by African-American students on both sides of the political spectrum were indistinguishable from the views of other students. Also, there are many subjects --tax law, for example, or organic chemistry -in which the connection between racial and intellectual diversity is hard to fathom In the current challenge to the university of michigan 's undergraduate and law-school affirmative action policies, which the Supreme Court heard on April l and on which it will rule by July, a range of groups from retired U.S. military officers to Fortune 500 companies-- have filed briefs urging the court to recognize that the benefits of diversity extend far beyond its contribution to a lively classroom debate. The former military officials emphasize that unless the officer corps reflects the racial makeup of the forces as a whole, it won't be perceived as legitimate by enlisted men and women. The Fortune 500 companies say that they cant be economically competitive in a global marketplace if their work forces don t reflect the racial diversity of their customer base. And the University of Michigan itself argues that students need to learn to interact with those of different races outside the classroom to train them for leadership in a multiracial society For this
How I Learned to Love Quotas - New York Times 1 of 5 June 1, 2003 How I Learned to Love Quotas By JEFFREY ROSEN Not long ago, I had an unexpected opportunity to explain to Justice Sandra Day O'Connor why I've changed my mind about affirmative action. I had been invited to give a talk about racial preferences for the justices of the Supreme Court of India, who were in Washington on a judicial exchange program. When I arrived at the conference room, I found, to my surprise and alarm, that the assembled Indian justices were accompanied by their hosts, Justices O'Connor and Stephen G. Breyer, who decided at the last moment to come along for the discussion. The thought of presuming to give an academic lecture about affirmative action in front of the woman who represents the swing vote on the Rehnquist Court -- and who will soon decide the fate of affirmative action in America -- was too harrowing to contemplate. So I abandoned my notes and chose instead to appeal to O'Connor in personal terms, describing why I had long been skeptical of affirmative action in higher education and why I recently have come to support it -- not for moral or social reasons but for purely practical ones. As I sat on the stage trying to decide what to say to O'Connor, I reflected on my change of heart. I had opposed quotas as a constitutional matter ever since studying the Supreme Court's Bakke decision in college, because I could never reconcile the reality of affirmative action as it is actually practiced with the version of affirmative action that the Supreme Court said was permissible. In his Bakke opinion in 1978, Justice Lewis F. Powell Jr. said that schools and universities couldn't pursue ethnic diversity for its own sake, but only as part of the broader educational goal of achieving intellectual diversity -- he called it ''the right to select those students who will contribute the most to the 'robust exchange of ideas.''' But I could never accept that racial diversity and diversity of viewpoint were so strongly correlated. If schools were truly interested in achieving a robust exchange of ideas, why would they limit preferences to African-Americans and Hispanics? Why not reach out to evangelical Christians and Iranian refugees as well? After becoming a law teacher a few years ago, I found that my constitutional doubts about affirmative action were joined by pragmatic ones. Race, I learned from classroom experience, is an imprecise and often unsatisfying proxy for intellectual diversity. I've had a few moments in class when the unique perspective of an African-American student was invaluable to the discussion -- like the time when a student in a criminal-procedure class described the indignity that he experienced after being pulled over for ''driving while black.'' But there have been many other moments when the views expressed by African-American students on both sides of the political spectrum were indistinguishable from the views of other students. Also, there are many subjects -- tax law, for example, or organic chemistry -- in which the connection between racial and intellectual diversity is hard to fathom. In the current challenge to the University of Michigan's undergraduate and law-school affirmative action policies, which the Supreme Court heard on April 1 and on which it will rule by July, a range of groups -- from retired U.S. military officers to Fortune 500 companies -- have filed briefs urging the court to recognize that the benefits of diversity extend far beyond its contribution to a lively classroom debate. The former military officials emphasize that unless the officer corps reflects the racial makeup of the forces as a whole, it won't be perceived as legitimate by enlisted men and women. The Fortune 500 companies say that they can't be economically competitive in a global marketplace if their work forces don't reflect the racial diversity of their customer base. And the University of Michigan itself argues that students need to learn to interact with those of different races outside the classroom, to train them for leadership in a multiracial society. For this
How I Learned to Love Quotas-New York Times reason, the law school seeks a"critical mass"of minority students that, although not formally a quota, has remained remarkably consistent from year to year and leads to the admission of black and Hispanic student with significantly lower test scores than those of their white and Asian counterparts Conservative scholars have countered with competing studies sug gesting that racial diversity on campus may aggravate racial tensions rather than alleviate them. And in my own experience, the benefits of diversity outside the classroom are hard to prove. Whenever I raise the q uestion in class, a few candid students volunteer that they rarely socialize with students of other races. In light of all these doubts about the nonacademic benefits of diversity in higher education, I had long believed that universities should try to achieve as much intellectual diversity as possible, and let the racial chips fall where they may i wish i could say there were a single, dramatic moment of revelation that turned me from an affirmative action skeptic into a supporter. But the truth is that my conversion took place over several years, in the late 1990s. After the courts and popular initiatives began to ban affirmative action, I noticed that state legislatures and universities rebelled, deciding on their own that racial diversity is more important than meritocracy. In both California and Texas, the political pressures to achieve racial diversity proved so overwhelming that when each state's universities were forbidden to take race into account in the admissions process, they simply refused to accept the decline in black and Hispanic enrollment that inevitably followed. Instead, universities responded to the widespread political demand for diversity by devising plans that, in effect, lowered academic standards across the board. This response has had some success in keeping up minority enrollments, but at the cost of an even more serious compromise of academic standards than the relatively modest concession represented by affirmative action itself. In other words, I became convinced that selective universities can't achieve colorblindness, diversity and high admission standards at the same time. They can achieve only two out of the three goals. For the most part, schools would prefer to choose standards and diversity, using racial preferences to create a diverse class while keeping standards relatively high. But if the courts order colorblindness, America's finest public and private universities won't hesitate for a moment in choosing diversity as the second goal, allowing rigorous admissions standards to go out the window. This is a prospect that both the Bush administration and some of the conservative justices on the Supreme Court seem ready to em brace. " If Michigan really cares enough about that racial imbalance, why doesn't it.. lower the standards, not have a flagship elite law school? asked Justice Antonin Scalia at the oral argument. "It solves the problem I first encountered the argument that eventually persuaded me to change my mind about affirmative action in a Supreme Court brief filed by three University of Texas law professors in 1997. In the brief, they predicted with eerie accuracy the political pressures that would lead public universities to lower academic standards if the courts prohibited racial preferences. " If affirmative action is ended, inevitable political, economic and legal forces will pressure the great public universities to lower admission standards as far as necessary to avoid resegregation, "wrote Douglas Laycock, Samuel Issacharoff and Charles Alan Wright. The complete end of affirmative action would be a formula for the destruction of the great public universities As it happened, the pressures to lower admissions standards in Texas and California played out precisely as the professors predicted. After the United States Court of Appeals for the Fifth Circuit banned affirmative action in 1996, the Texas Legislature adopted a series of laws that required the University of Texas to lower its admissions standards in various ways. First, the Legislature adopted a 10-percent plan, " which guaranteed that any students who graduated in the top 10 percent of their high-school classes would be admitted to any ablic university in Texas, regardless of their test scores, the classes that they took or their ability to contribute to intellectual diversity According to Douglas Laycock, who has reviewed the undergraduate admissions figures for the University of Texas, the school before the 10-percent plan admitted 93 percent of all applicants at the top 10 percent of their high-school classes. Now it has to admit the remaining 7 percent of white and black students who would have
How I Learned to Love Quotas - New York Times 2 of 5 reason, the law school seeks a ''critical mass'' of minority students that, although not formally a quota, has remained remarkably consistent from year to year and leads to the admission of black and Hispanic students with significantly lower test scores than those of their white and Asian counterparts. Conservative scholars have countered with competing studies suggesting that racial diversity on campus may aggravate racial tensions rather than alleviate them. And in my own experience, the benefits of diversity outside the classroom are hard to prove. Whenever I raise the question in class, a few candid students volunteer that they rarely socialize with students of other races. In light of all these doubts about the nonacademic benefits of diversity in higher education, I had long believed that universities should try to achieve as much intellectual diversity as possible, and let the racial chips fall where they may. I wish I could say there were a single, dramatic moment of revelation that turned me from an affirmative action skeptic into a supporter. But the truth is that my conversion took place over several years, in the late 1990's. After the courts and popular initiatives began to ban affirmative action, I noticed that state legislatures and universities rebelled, deciding on their own that racial diversity is more important than meritocracy. In both California and Texas, the political pressures to achieve racial diversity proved so overwhelming that when each state's universities were forbidden to take race into account in the admissions process, they simply refused to accept the decline in black and Hispanic enrollment that inevitably followed. Instead, universities responded to the widespread political demand for diversity by devising plans that, in effect, lowered academic standards across the board. This response has had some success in keeping up minority enrollments, but at the cost of an even more serious compromise of academic standards than the relatively modest concession represented by affirmative action itself. In other words, I became convinced that selective universities can't achieve colorblindness, diversity and high admission standards at the same time. They can achieve only two out of the three goals. For the most part, schools would prefer to choose standards and diversity, using racial preferences to create a diverse class while keeping standards relatively high. But if the courts order colorblindness, America's finest public and private universities won't hesitate for a moment in choosing diversity as the second goal, allowing rigorous admissions standards to go out the window. This is a prospect that both the Bush administration and some of the conservative justices on the Supreme Court seem ready to embrace. ''If Michigan really cares enough about that racial imbalance, why doesn't it . . . lower the standards, not have a flagship elite law school?'' asked Justice Antonin Scalia at the oral argument. ''It solves the problem.'' I first encountered the argument that eventually persuaded me to change my mind about affirmative action in a Supreme Court brief filed by three University of Texas law professors in 1997. In the brief, they predicted with eerie accuracy the political pressures that would lead public universities to lower academic standards if the courts prohibited racial preferences. ''If affirmative action is ended, inevitable political, economic and legal forces will pressure the great public universities to lower admission standards as far as necessary to avoid resegregation,'' wrote Douglas Laycock, Samuel Issacharoff and Charles Alan Wright. ''The complete end of affirmative action would be a formula for the destruction of the great public universities.'' As it happened, the pressures to lower admissions standards in Texas and California played out precisely as the professors predicted. After the United States Court of Appeals for the Fifth Circuit banned affirmative action in 1996, the Texas Legislature adopted a series of laws that required the University of Texas to lower its admissions standards in various ways. First, the Legislature adopted a ''10-percent plan,'' which guaranteed that any students who graduated in the top 10 percent of their high-school classes would be admitted to any public university in Texas, regardless of their test scores, the classes that they took or their ability to contribute to intellectual diversity. According to Douglas Laycock, who has reviewed the undergraduate admissions figures for the University of Texas, the school before the 10-percent plan admitted 93 percent of all applicants at the top 10 percent of their high-school classes. Now it has to admit the remaining 7 percent of white and black students who would have
How I Learned to Love Quotas-New York Times been rejected under the old system. I asked Laycock to describe the students in this group. "These are students with some serious weaknesses elsewhere in the file, "he said. "Either very low test scores, or they didn ' t take college prep courses, or their recommenders have serious reservations, or they have a lousy writing sample or some combination of those things In other words, by taking a single attribute -- class rank --and requiring the university to throw out all the other more nuanced measures of intellectual diversity and academic ability-from test scores to musical skills to success in overcoming adversity --the 10-percent plans guar antee the admission of white and black students who are both less academically prepared and also less likely to contribute to the diversity of the has been tangible: Laycock said the percentage of students admitted from the top 10 percent of their classey university as a whole than the white and black students they are displacing. The effect on academic standar with SAT scores below 1,000 has tripled since the 10-percent pl ans were introduced. To keep the new admits from dropping out, the university has had to offer remedial classes The top-10-percent plans don' t apply to law schools or other graduate schools, which admit their applicants not from largely segregated state high schools but from more integrated colleges across the state and the country. So now Texas legislators are attacking the academic selectivity of the graduate schools as well.An minimum G.P.A. for all applicants. Wilson told me that the willingness of courts to allow selective z aw African-American state representative named Ron Wilson persuaded the Texas Legislature to pass a law requiring any school in the Texas system that has a minimum G.P. A for athletes to use the same low universities to relax their academic standards for athletes and children of alumni but not for African-Americans was"a great hypocrisy"that his constituents would not tolerate. After the law school of the University of Texas at Austin, the crown jewel in the state system, insisted that it wasn 't bound by this blunt assault on academic standards, Wilson introduced another bill that would require all graduate and professional schools in the U T system to guarantee 30 percent of their admissions slots to any person who graduates in the top 10 percent of any institution of higher education. If there aren' t enough seats in a class to accommodate all the qualified applicants, the schools must hold a lotte I told Wilson that the U.T. law school at Austin, the most selective graduate school in Texas, is concerned that both of his bills will lead to increasingly open admissions that will destroy its academic selectivity. ""I'm sick and tired of hearing about academic quality "Wilson exploded. " These schools are set up to educate the citizenry! It's more important for us to educate the masses than to set up these Taj mahal sacred cows that basically suck the lifeblood from a community for their own edification. "Wilson 's eagerness to destroy the only first-tier graduate schools in the state system, simply because his constituents won't tolerate elitism makes the choice between affirmative action and its alternatives seem easy If the Supreme Court bans affirmative action throughout America(as it could, in effect, if it rules broadly against Michigan), even the best private universities that rece ive public funds, like Harvard and Yale, will feel similar pressure to de-emphasize objective predictors of academ ic performance, like grades and test favor of softer proxies for racial diversity. After the United States Court of Appeals for the Fifth Circuit banned affirmative action in 1996, for example, Rice University began to encourage applicants to write essays about their"cultural traditions. "Around the same time, the law school of the University of Texas at Austin began to invite all applicants to write a personal statement about the ways in which they had overcome disadvantages of any kind. Professors who have read the statements describe them as creating a competition of victimhood among applicants who have little to complain about. I was stunned to read in essay after essay about how each of these supremely talented and successful applicants was a victim of some sort, said Samuel Issacharoff, who reviewed law-school admissions files in the 1990 s People were encouraged to define themselves not in terms of achieving but in terms of suffering Of course, there has never been an impassioned political constituency for meritocracy -standards that exclude most of the population aren't likely to have many defenders. But today, objective predictors of academic performance have as many detractors on the right as on the left The most depressing revelation
How I Learned to Love Quotas - New York Times 3 of 5 been rejected under the old system. I asked Laycock to describe the students in this group. ''These are students with some serious weaknesses elsewhere in the file,'' he said. ''Either very low test scores, or they didn't take college prep courses, or their recommenders have serious reservations, or they have a lousy writing sample or some combination of those things.'' In other words, by taking a single attribute -- class rank -- and requiring the university to throw out all the other more nuanced measures of intellectual diversity and academic ability -- from test scores to musical skills to success in overcoming adversity -- the 10-percent plans guarantee the admission of white and black students who are both less academically prepared and also less likely to contribute to the diversity of the university as a whole than the white and black students they are displacing. The effect on academic standards has been tangible: Laycock said the percentage of students admitted from the top 10 percent of their classes with SAT scores below 1,000 has tripled since the 10-percent plans were introduced. To keep the new admits from dropping out, the university has had to offer remedial classes. The top-10-percent plans don't apply to law schools or other graduate schools, which admit their applicants not from largely segregated state high schools but from more integrated colleges across the state and the country. So now Texas legislators are attacking the academic selectivity of the graduate schools as well. An African-American state representative named Ron Wilson persuaded the Texas Legislature to pass a law requiring any school in the Texas system that has a minimum G.P.A. for athletes to use the same low minimum G.P.A. for all applicants. Wilson told me that the willingness of courts to allow selective universities to relax their academic standards for athletes and children of alumni but not for African-Americans was ''a great hypocrisy'' that his constituents would not tolerate. After the law school of the University of Texas at Austin, the crown jewel in the state system, insisted that it wasn't bound by this blunt assault on academic standards, Wilson introduced another bill that would require all graduate and professional schools in the U.T. system to guarantee 30 percent of their admissions slots to any person who graduates in the top 10 percent of any institution of higher education. If there aren't enough seats in a class to accommodate all the qualified applicants, the schools must hold a lottery. I told Wilson that the U.T. law school at Austin, the most selective graduate school in Texas, is concerned that both of his bills will lead to increasingly open admissions that will destroy its academic selectivity. ''I'm sick and tired of hearing about academic quality,'' Wilson exploded. ''These schools are set up to educate the citizenry! It's more important for us to educate the masses than to set up these Taj Mahal sacred cows that basically suck the lifeblood from a community for their own edification.'' Wilson's eagerness to destroy the only first-tier graduate schools in the state system, simply because his constituents won't tolerate elitism, makes the choice between affirmative action and its alternatives seem easy. If the Supreme Court bans affirmative action throughout America (as it could, in effect, if it rules broadly against Michigan), even the best private universities that receive public funds, like Harvard and Yale, will feel similar pressure to de-emphasize objective predictors of academic performance, like grades and test scores, in favor of softer proxies for racial diversity. After the United States Court of Appeals for the Fifth Circuit banned affirmative action in 1996, for example, Rice University began to encourage applicants to write essays about their ''cultural traditions.'' Around the same time, the law school of the University of Texas at Austin began to invite all applicants to write a personal statement about the ways in which they had overcome disadvantages of any kind. Professors who have read the statements describe them as creating a competition of victimhood among applicants who have little to complain about. ''I was stunned to read in essay after essay about how each of these supremely talented and successful applicants was a victim of some sort,'' said Samuel Issacharoff, who reviewed law-school admissions files in the 1990's. ''People were encouraged to define themselves not in terms of achieving but in terms of suffering.'' Of course, there has never been an impassioned political constituency for meritocracy -- standards that exclude most of the population aren't likely to have many defenders. But today, objective predictors of academic performance have as many detractors on the right as on the left. The most depressing revelation in
How I Learned to Love Quotas-New York Times the current Supreme Court litigation is the Bush administration's brief, which praises the so-called X-percent plans adopted in California, Texas and Florida, and urges public universities to adopt"admissions policies that seek to promote experiential, geographical, political or e conomic diversity"as a way of keeping up the number of racial minorities The White House counsel, Alberto Gonzales, when asked about the possibility that black and Hispanic enrollments might decrease if the Supreme Court outlaws the use of race in the admissions process, replied, simply, " We can' t let that happen. " To Gonzales, that means that"what colleges and universities have to do is be creative in developing other criteria in judging a person's potential. We want to attract students who come from bilingual homes. We want to attract students who come from families who have suffered discrimination. "The Bush administration's position has disappointed principled conservatives who believe students should be admitted on the basis of academic criteria alone "i think the bush administration's brief a legal matter is completely unpersuasive and incoherent, "I was told by Roger Clegg of the Center for Equal Opportunity in Virginia, who has spent years in the conservative trenches valiantly defending colorblind meritocracy."I don,'t know of any conservatives who are not disappointed in it I'm not alone in wondering whether affirmative action might be a better way of balancing intellectual diversity with meritocracy than the alternatives that are certa in to follow its elimination. After the Bush brief was filed, I called Abigail Thernstrom, co-author of"America in Black and White"and a leading critic of racial preferences in the country. We hadn't talked for a while, and I expected to be chastised for having gone wobbly on the issue. But to my surprise, I found that Thernstrom had also been struck by the lowering of academic standards that followed the elimination of affirmative action. These X-percent plans are racially driven, and sometimes I almost think I would rather have honest preferences, she told me. " It's going to be the victimology essays writ large: 'I live in Scarsdale and you don' t know how horrible it is. We're all gettin high on Coricidin to get through our classes This is going to be a total nightmare When presented with my conversion, some of my conservative friends object that it's based on a pragmatic rather than a constitutional defense. The Constitution is color blind, they say, and therefore Michigan's policy is unconstitutional. The court should strike it down, and damn the consequences. But the truth is that the court has never said that the Constitution is colorblind in all circumstances, and that principle is hard to locate in constitutional history. There is also nothing in the Constitution that requires the court to hold that intellectual diversity is the only interest compelling enough to justify race-conscious admissions policies; when Justice Scalia asked why michigan had to have a"super-duper law school, the university's lawyer replied that"there is a compelling interest in having an institution that is both academically excellent and racially diverse Finally, it,'s perfectly legitimate for the court to weigh real-world, practical considerations in hard cases in which the social implications are enormous and the legal precedents are open-ended. Because universities will take race into account regardless of what the court decides, the court should allow them to do so openly, in ways that won,'t destroy their admissions standards, rather than forcing them to lie, in ways that will harm society as a whole If, by contrast, the Supreme Court adopts the position of the Bush administration, rules against Michigan and will threaten academic standards and intellectual diversity at the same time. As the admissions proces esults encourages universities to continue to take race into account as long as they continue to lie about it, the becomes more focused on subjective tales of woe, it's not hard to imagine students campaigning for slots like candidates for office, with admissions officers forced to evaluate personal stories rather than academic ability A result of this growing hypocrisy will not be greater fairness, meritocracy or diversity of viewpoint, but less of all three of these important values That, in any event, is what I tried to say to Justice O'Connor. I don 't know whether my earnest appeal made any ession on her; she seemed skeptical of affirmative action during the question-and-answer period that followed. When an Indian Supreme Court justice was asked how long India's caste-based quota system would continue, he said the quotas would never end. O'Connor raised her eyebrow in response and gave me a
How I Learned to Love Quotas - New York Times 4 of 5 the current Supreme Court litigation is the Bush administration's brief, which praises the so-called X-percent plans adopted in California, Texas and Florida, and urges public universities to adopt ''admissions policies that seek to promote experiential, geographical, political or economic diversity'' as a way of keeping up the number of racial minorities. The White House counsel, Alberto Gonzales, when asked about the possibility that black and Hispanic enrollments might decrease if the Supreme Court outlaws the use of race in the admissions process, replied, simply, ''We can't let that happen.'' To Gonzales, that means that ''what colleges and universities have to do is be creative in developing other criteria in judging a person's potential. We want to attract students who come from bilingual homes. We want to attract students who come from families who have suffered discrimination.'' The Bush administration's position has disappointed principled conservatives who believe students should be admitted on the basis of academic criteria alone. ''I think the Bush administration's brief as a legal matter is completely unpersuasive and incoherent,'' I was told by Roger Clegg of the Center for Equal Opportunity in Virginia, who has spent years in the conservative trenches valiantly defending colorblind meritocracy. ''I don't know of any conservatives who are not disappointed in it.'' I'm not alone in wondering whether affirmative action might be a better way of balancing intellectual diversity with meritocracy than the alternatives that are certain to follow its elimination. After the Bush brief was filed, I called Abigail Thernstrom, co-author of ''America in Black and White'' and a leading critic of racial preferences in the country. We hadn't talked for a while, and I expected to be chastised for having gone wobbly on the issue. But to my surprise, I found that Thernstrom had also been struck by the lowering of academic standards that followed the elimination of affirmative action. ''These X-percent plans are racially driven, and sometimes I almost think I would rather have honest preferences,'' she told me. ''It's going to be the victimology essays writ large: 'I live in Scarsdale and you don't know how horrible it is. We're all getting high on Coricidin to get through our classes.' This is going to be a total nightmare.'' When presented with my conversion, some of my conservative friends object that it's based on a pragmatic rather than a constitutional defense. The Constitution is colorblind, they say, and therefore Michigan's policy is unconstitutional. The court should strike it down, and damn the consequences. But the truth is that the court has never said that the Constitution is colorblind in all circumstances, and that principle is hard to locate in constitutional history. There is also nothing in the Constitution that requires the court to hold that intellectual diversity is the only interest compelling enough to justify race-conscious admissions policies; when Justice Scalia asked why Michigan had to have a ''super-duper law school,'' the university's lawyer replied that ''there is a compelling interest in having an institution that is both academically excellent and racially diverse.'' Finally, it's perfectly legitimate for the court to weigh real-world, practical considerations in hard cases in which the social implications are enormous and the legal precedents are open-ended. Because universities will take race into account regardless of what the court decides, the court should allow them to do so openly, in ways that won't destroy their admissions standards, rather than forcing them to lie, in ways that will harm society as a whole. If, by contrast, the Supreme Court adopts the position of the Bush administration, rules against Michigan and encourages universities to continue to take race into account as long as they continue to lie about it, the results will threaten academic standards and intellectual diversity at the same time. As the admissions process becomes more focused on subjective tales of woe, it's not hard to imagine students campaigning for slots like candidates for office, with admissions officers forced to evaluate personal stories rather than academic ability. A result of this growing hypocrisy will not be greater fairness, meritocracy or diversity of viewpoint, but less of all three of these important values. That, in any event, is what I tried to say to Justice O'Connor. I don't know whether my earnest appeal made any impression on her; she seemed skeptical of affirmative action during the question-and-answer period that followed. When an Indian Supreme Court justice was asked how long India's caste-based quota system would continue, he said the quotas would never end. O'Connor raised her eyebrow in response and gave me a
How I Learned to Love Quotas-New York Times meaningful glance of reproach. But in an increasingly egalitarian democracy, the demand for public institutions that look like America will never end, either. It will only grow more insistent If the court, in yet another spasm of judicial activism, presumes to ban racial preferences across America, the percentage of racial minorities admitted to selective universities will remain as high as the public demands, but the universities themselves will be damaged beyond repair. Given the choice between this grim future and the more limited compromises of racial preferences, I no longer think of affirmative action in higher education as the lesser of two evils. I grasp for it eagerly, like a drowning man reaching for a life preserver Jeffrey rosen is an associate professor at george Washington University Law School and the legal affairs editor of The New Republic. He writes regularly for The Times Magazine
How I Learned to Love Quotas - New York Times 5 of 5 meaningful glance of reproach. But in an increasingly egalitarian democracy, the demand for public institutions that look like America will never end, either. It will only grow more insistent. If the court, in yet another spasm of judicial activism, presumes to ban racial preferences across America, the percentage of racial minorities admitted to selective universities will remain as high as the public demands, but the universities themselves will be damaged beyond repair. Given the choice between this grim future and the more limited compromises of racial preferences, I no longer think of affirmative action in higher education as the lesser of two evils. I grasp for it eagerly, like a drowning man reaching for a life preserver. Jeffrey Rosen is an associate professor at George Washington University Law School and the legal affairs editor of The New Republic. He writes regularly for The Times Magazine