Commentary Magazine


How the Case for Race-Based Admissions Fell Apart

When the Supreme Court signaled it was about to rule on its most prominent race-based admissions case yesterday, advocates on both sides of the contentious issue prepared to erupt either in outrage or celebration. Neither, it turned out, was called for in the end. The court voted overwhelmingly to send Fisher v. University of Texas, which challenges the system of race-based admissions in higher education, back to the lower court to apply a stricter level of scrutiny to the admissions process and rule again.

As the Wall Street Journal notes, yesterday’s decision “is a disappointment for those who hoped the High Court would overturn its 2003 decision in Grutter v. Bollinger that allowed racial preferences in higher education.” But the (victorious) defendant in that case, current Columbia University President Lee Bollinger, isn’t too enthused by yesterday’s decision either. He takes to the pages of the New York Times today to express his disapproval of what he considers the court’s overly technical approach to the issue, in which it deferred to colleges’ judgment of the educational benefit of racial diversity in admissions but called for a rigorous process to determine the necessity and extent of race-based considerations.

Bollinger thinks the justices erred in focusing so closely on the constitutional aspect of the case because the Supreme Court “is as much an educator, a moral instructor, as an interpreter of the fundamental law of the land.” Bollinger’s frustration is representative of the broader, if tacit, acknowledgement on the American left that their side on this argument is weak on the merits but will resort to public moral shaming of those who disagree as a last resort. But the real heart of this case, and where it completely falls apart for Bollinger’s side, is when he writes this:

In many school districts, racial segregation is as bad as it was before Brown. About 40 percent of black and Hispanic children attend K-12 schools where 10 percent or fewer of their classmates are white. Residential racial segregation remains deeply entrenched. Proposition 209, a voter-sanctioned ban on affirmative action at California’s public universities, led to a sharp decrease in representation of black students at the Berkeley and Los Angeles campuses.

Bollinger’s point about “residential” segregation is true. But it is not an argument for basing college admissions on systematized racial discrimination. It is an argument against the government monopoly on pre-college education and in favor of school choice. Indeed, Bollinger’s argument collapses from one sentence to the next. He bemoans residential racial segregation–which is currently the basis of liberal education policy in this country–and then moves on to university admissions. What’s the difference? Universities, unlike public high schools, don’t care which town you grew up in.

But it’s also important to point out that Bollinger is dishonestly framing the effects of Proposition 209. First of all, the year after the ban was passed the Berkeley campus announced a 30 percent increase in minority students over the previous year. Second, many of the students who didn’t get into the two UC campuses Bollinger mentions simply went to other UC campuses. And third, as a Duke University study found, “minority graduation rates increased after Prop 209 was implemented, a finding consistent with the argument that affirmative action bans result in better matching of students to colleges.”

Even more importantly, they were found in California to have positive effects on the education of minority students at the grade school and high school level. As the New York Times reported in 1999:

Finally, ending affirmative action has had one unpublicized and profoundly desirable consequence: it has forced the university to try to expand the pool of eligible minority students. Outreach programs like the one underwritten by Proposition 3 have proliferated; the State Legislature authorized $38.5 million for such efforts last year and has required the public schools to spend an additional $31 million on similar initiatives. U.C. campuses are now reaching down into the high schools, the junior highs and even the elementary schools to help minority students achieve the kind of academic record that will make them eligible for admission, thus raising the possibility that diversity without preferences will someday prove to be more than a fond hope. Academics and administrators throughout the system admit that the university would never have shouldered this burden had it not been for the elimination of affirmative action; and many say that the price is worth paying.

In other words, the educators are educating now that the law compels them to. There are too many variables to know which way the issue will go in the coming years. But it is simply wrong to imply that because racism has not been completely eradicated we must enforce racial discrimination in college admissions. It’s also wrong to claim this discrimination is beneficial; the evidence suggests it is not.

And we should take Bollinger and his ilk at their word and enlist them in the efforts to bring educational opportunities to all those minorities currently being excluded by the government’s policy of residential racial segregation in public education. After all, if Bollinger thinks a Supreme Court justice is “an educator, a moral instructor,” certainly a university president is as well.

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