I have quickly read over the Justice Department briefs in the Michigan cases. On first-read, they are worse than what I expected. My fear has been that the government would take no position on whether the state has a compelling interest in promoting racial diversity through a preference program and would argue only that, whatever may be the case with respect to this general issue, the University of Michigan’s race-based admissions policies are unconstitutional because they go too far. A decision along these lines by the Supreme Court, I fear, would cause public universities to use more subtle methods of discriminating on the basis of race in favor of minority group members. But it looks to me that the government has not only taken the position that it’s okay for public universities to make race-based decisions, but has actually told them how to do so in a way that supposedly is constitutional.
Of course, the government doesn’t come out and say this. What it says is that “ensuring that public institutions, and in particular public universities, are open and available to all segments of American society represents a paramount government objective” and that public universities “have substantial latitude to ensure that universities are open to all individuals and that student bodies are educationally diverse and broadly representative of the public.” But the government is mixing two concepts. The state does have a paramount interest in making sure that student bodies are open to all individuals. It meets that interest by making completely color blind admissions decisions. But it’s a massive leap to then say that the government also has a paramount interest in ensuring racial diversity. This is the proposition that I hoped the government would deny, or at least remain agnostic about. Instead, it seems to have embraced the diversity rationale.
The government goes on to hold out as shining examples of how to achieve racial diversity the allegedly race-neutral admissions standards used by the University of Texas and other institutions. Texas, as I understand it, awards slots at the Austin campus to kids who finish in the top 10 percent of their high school class. They came up with this scheme as a way of admitting lots of African-Americans and Hispanics who wouldn’t otherwise make it. The system accomplishes this because, at many inner city and other high schools, African-Americans and/or Hispanics don’t compete with white students. In other words, Texas has merely developed a more clever way than Michigan of achieveing a high level of racial diversity. And, in these briefs, the government applauds this. But in what sense is what Texas has done really “race-neutral?” Choosing a facially neutral selection system for the purpose of achieving a racial result is a classic form of discrimination, condemned as such in all areas of civil rights law. I find the Administration’s stance very disappointing, again on first-read.
I’ll try to take a closer look at this later tonight.
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