- The Washington Times - Tuesday, June 24, 2003

Race-based affirmative action is “misguided” and should be eliminated, Peter H. Schuck argues. That’s not really an unusual position. As Mr. Schuck notes, racial preferences in hiring and admissions are “intensely unpopular” among many Americans.

What is unusual is that the messenger in this case is a liberal law professor at Yale University, making his argument in a book — “Diversity in America” — published by Harvard University Press and gaining praise from fellow liberals.

Sociologist Alan Wolfe praised Mr. Schuck’s “insight and subtlety” in the New Republic magazine, and Berkeley professor David L. Kirp writes in the Nation that “Schuck’s analyses are provocative and complex” while his book “tests some of the left’s most cherished beliefs.”

Mr. Schuck’s arguments arrive just as the Supreme Court — in a case involving racial preferences at the University of Michigan — has made its first significant ruling on affirmative-action law since the 1978 Bakke case.

Mr. Schuck, however, doesn’t base his arguments on the Constitution. Given that Congress enacted measures to aid newly freed blacks in the South after the Civil War, Mr. Schuck says, the 14th Amendment gives Congress “the power to favor blacks at the expense of the white majority if it believes this would be sound policy.”

But it isn’t sound policy, he says, and he argues that the Supreme Court justifies affirmative action under only one rationale — diversity — that “is too flimsy and poorly tailored to the relevant social facts to satisfy the current constitutional standard.”

“My argument is that affirmative action is not necessarily unconstitutional but that as a matter of public policy it is misguided and ought to be eliminated from the public sector,” Mr. Schuck says in a telephone interview. “I do, however, believe that private entities ought to be able to adopt preferences if they wish, so long as they disclose it.”

That disclosure requirement would “impose a heavy and salutary discipline on them,” Mr. Schuck says, since many universities have tried to keep secret the extent of favoritism involved in affirmative action.

“I think the need to justify them publicly … rather than concealing them as so many do, pretending that this is simply a slight pinkie on the scale among competing applicants who are comparable in every other respect — if they were disclosing the true character of these preferences, I think they would be harder put to defend them.”

In his book, Mr. Schuck cites one study that found black applicants to selective schools received an admissions advantage equivalent to 400 points on the SAT. Another study found that at the University of Michigan, with the same SAT and grade-point average, a black student was 173 times more likely to be admitted than a white student.

This “creates a real cynicism and fury on the part of those who are disadvantaged by these policies,” Mr. Schuck said.

Weeks before Monday’s ruling, Mr. Schuck had accurately predicted that the Supreme Court would strike down Michigan’s undergraduate admissions policy — which awarded up to 20 extra points for black and Hispanic applicants — while upholding the university’s more-ambiguous law-school admissions policy.

Monday, he said he was “disappointed” with the Supreme Court’s ruling in the Michigan case. “I think that the preferences [in law-school admissions] are constitutional, but not for the reasons the court gives. I think the reasons the court gives are not very convincing as a policy matter,” Mr. Schuck said.

He criticized the court for “obscuring the issue” by disallowing quotas or “separate tracks” for admitting minority students, yet allowing race to be considered as a “plus factor” in admissions.

“At a certain point, the weight given to race may in effect place students on a separate track where they’re not forced to compete with nonfavored races,” Mr. Schuck said. “In reading this opinion, I don’t know how heavy a factor race can be without running into that constitutional barrier.”

Whatever courts do, universities will keep looking for ways to enhance minority enrollment, Mr. Schuck says.

“I think that institutions that practice affirmative action are determined to continue with preferences, if there is any way they can possibly justify them under the law,” he says. “This includes subterfuges and stratagems that might retain preferences in a different guise. …

“Schools will say, ‘We’re not giving racial preferences but we’re taking into account socioeconomic obstacles that the applicants have faced.’”

While his treatment of affirmative action is “as comprehensive an analysis of the problem as there is,” Mr. Schuck notes that it occupies only one chapter of a book that addresses many aspects of diversity in American society. Among the others:

• “Immigration is really the source of much of our diversity,” Mr. Schuck says. He argues in his book “that all the evidence suggests bilingual education has actually hindered the assimilation of new immigrants.” And he argues that the so-called “diversity lottery,” which awards 50,000 visas annually, is “an extremely perverse way to decide who our neighbors and fellow citizens are going to be.”

• In housing policy, Mr. Schuck examines how “government has tried to subsidize or mandate a kind of diversity in residential communities.” In Chicago, Yonkers, N.Y., and Mount Laurel, N.J., he says, “in each case, I find when courts tried to design and mandate … class and racial integration in these communities, their effort was unsuccessful.” A more-effective approach, he says, is the use of federal Section 8 vouchers to “enable low-income people to move to better communities.”

• “Our public education system … in many urban areas, is a disaster,” Mr. Schuck says. One of the reasons is that “the public schools enjoy a monopoly,” he says.

“It is hard to justify keeping children who are not learning in the grip of an educational monopoly that has demonstrably failed,” says Mr. Schuck, who notes that many public-school teachers and administrators send their own children to private schools. “Just as middle-class and upper-middle-class parents can find alternatives for their children, lower-income people ought to be able to do so as well.”

The obsession with promoting diversity “has accomplished the very opposite of what it was intended to accomplish,” Mr. Schuck says. Preferential policies for black and Hispanic students create a “stigma that attaches to their achievements” and also leads to “scurrilous, underground resentment,” he says.

“It unfairly taints the achievement of those minorities who have earned their places through the traditional criteria — merit. The stigma attaches much more widely than it should,” he says.

Because there is widespread agreement about equal opportunity, the affirmative-action debate is really over how to make that happen, Mr. Schuck says.

“I think that the pursuit of equal opportunity is a very fundamental commitment of American society, and that American society in general believes that government has some role to play in assuring that opportunity,” he says.

“If that is the case, the question is, how can government best do that? In my view, it ought to draw more on the diversity that exists in civil society and should empower individual citizens to make many choices that government has come to make for them — often and ironically under the pretext of promoting diversity.”

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