Will the Supreme Court lose its nerve?

Robert Samuelson of the Washington Post delivers a thoughtful but ultimately misguided analysis of the issue of race-based college admssions. Samuelson’s premise is a sound one — that the debate on this subject stems from an apparent conflict between two deeply held American beliefs. The first is that racial and ethnic preferences are detestable; the second is that minority participation in mainstream institutions is desirable. Samuelson goes on to argue that any resolution of the “affirmative action” debate should, to the extent possible, reconcile these two strands.
The problem with Samuelson’s thesis is that, as a legal matter, the first strand trumps the second. The anti-preference principle is mandated by the constitution. The desire for racial balance is, as Samuelson admits, a pragmatic desire with no special constitutional basis. However, Samuelson may well get the last laugh because I think the Supreme Court will probably decide the University of Michigan cases by engaging in something like the balancing act that Samuelson calls for.
But here is where Samuelson’s piece gets interesting. He argues that race-based preferential admissions don’t make very much difference when it comes to providing college opportunities to minority students. First, he cites a study showing that only about 20 percent of colleges are affected by racial preferences at all. Next, he cites the same study for the proposition that, even at selective colleges, ending preferences would reduce the number of blacks and Hispanics accepted for admission by only about 25 percent. Samuelson acknowledges that the results would be more pronounced at the very top schools, but rejects claims that minority representation would decreae by two-thirds or anything approching that level.
The logical conclusion to be drawn from Samuelson’s piece is that, even if one balances principle and “pragmatisim,” the result should be the rejection of racial preferences. Such preferences always violate the anti-discrimination principle and, as Samuelson puts it, often “wickedly” so. Yet the benefits in terms of providing minority access to colleges are not substantial. Unfortunately, at the end of the column Samuelson backs away from this fairly obvious conclusion by reverting to generalities about the benefits of a diverse classroom, as if he had not just shown that classrooms can remain diverse without racial preferences.
Let’s hope that, unlike Samuelson, the Supreme Court keeps its nerve.

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