Corruption and disgrace are the wages of arbitrary favoritism. Our universities
cannot give racial preferences as they do and still claim honestly that they do not
discriminate by race. But they do claim that, for they are obliged by law to refrain
from discriminating by race. But-as the president of my university asserted on
ABC's 2 December 1997 World News Tonight- "We do discriminate [by race]." How
to escape the quandary? The three most common options, all bad, are these:

Option One: Hide what you do; obfuscate when you report. Private universities need not reveal their policies and do not. Public universities hope internal secrecy will protect them. At Michigan, for example, documents in which preferential policies are plainly set forth (obtained only by FOIA) are headed (in big letters) "Confidential: Internal Use Only." Some universities just stonewall. Preferential policies cannot withstand public examination, so emrassment is best avoided by concealment. When report must be made, let it be made in language calculated to confuse and to obscure.

Option Two: Deceive. Administrators describe their admissions policies with words carefully chosen to suggest that they comply with the Constitution. Seeking protection from justice Powell's opinion in Bakke, the phrase "we consider race as one among many factors" is almost a mantra (and of course it is quite true!) -while there is a convenient failure to note that in that opinion Powell also condemned any admission system that accords racial preference, or that treats applicants differently simply because of their color, or that "draws a line on the basis of race." Considering race as "but one factor" is a necessary condition of compliance, but not a sufficient condition of it; to infer that because one necessary condition is fulfilled they are in compliance is an egregious example of the fallacy of affirming the consequent. (P implies Q. Q is true. Therefore P is true.) Either our colleagues are making an embarrassing logical error, or they are seeking deliberately to deceive. In truth we do exactly what Bakke forbids-and our administrators either know it, or ought to know it.

Deceit takes other forms-as when discriminatory admission rates are explained as a result of individualized treatment of applicants, their good character considered, their contributions to the community, their special talents, and the like-as though such individualization could explain the patterns of racial preference revealed. The admissions process must not be reduced to a mechanical one, we are told. Quite right! Conveniently left unsaid is the fact that personal virtues and other non-quantitative merits are weighed for applicants in some racial groups but not in others. The admission rate for "Caucasian American" (in some statistical regions) in the Michigan Law School is 2 percent-while in the same regions the admssion rate for "African-Americans" is 100 percent. Is that to be accounted for by special talents? By fine character? Do they take us, and the public, to be simpletons?

Option Three: If secrecy and deception are not enough, then lie. "The University of Michigan " we are formally advised, "is committed to a policy of nondiscrimination and equal opportunity for all persons regardless of race, sex, or color in employment, educational programs and activities, and admissions." I wrote the director of the Office of Undergraduate Admissions, with indisputable proof of racial discrimination from his own office in hand, asking him if the practices of his office comply with that public commitment. He didn't answer. I wrote again. Again no answer. I wrote a third time. He replied at last: "I can assure you that the policies and practices of my office are fully in accord with the University policy of nondiscrimination by race and ethnicity." Does that man not know what goes on in his own office? Or is he lying?

If our universities are proud of race preference given, let them say openly and honestly what they do, and defend it as best they can. If they are ashamed of preference given, or troubled by its violation of law, let them stop. But it is unseemly, to put the matter gently, for an institution of higher learning publicly to proclaim principles that in secret are knowingly ignored. This pervasive duplicity is a stain on our colleges that only the abolition of preferences will enable us to cleanse.

Will the abolition of preferences be good for higher education? Yes, very good indeed.

Commenting on a spate of announcements for university job openings to which the phrase "Ethnic minorities and women are encouraged to apply" is routinely appended, one California professor put the following suggestion to his school administrators:

In recent years I have become uneasy with the position that we should eliminate all racial and ethnic preferences in college, university, and professional school admissions. This was a position that I held until the last few years. In 1975, 1 published Affirmative Discrimination, one of the first books, I believe, to deal with the shift in affirmative action from "soft" to "hard." In its early phases, affirmative action called for reaching out, advertising, recruiting, and preparing members of minorities for jobs, promotions, admission to selective colleges, and the like. A new phase, what I would call "hard" affirmative action, dates from the end of the 1960s and the beginning of the 1970s, and in this phase numerical targets were set by federal agencies to monitor progress in reaching affirmative action goals. I argued against this, as violating the spirit of the Civil Rights Act of 1964 -the specific assurances of what that law meant given by its Congressional sponsors, and its very specific language prohibiting quotas. Further, I argued, such race-conscious measures were against the basic spirit of what America was intended to be, as defined by the Declaration of Independence, the Constitution, and the key post- Civil War amendments to the Constitution.

In that book, I discussed "affirmative action" in its new numerical phase as it affected employment, efforts to root out segregation in public education, and efforts to overcome through numerical targets segregation in housing. I did not discuss specifically two other important areas in which affirmative action operates: (1) granting of public contracts, and (2) college admissions, the subject of our panel today. But from the positions taken in that book it was clear that I also opposed racial preference in those areas.

In this paper, I discuss the considerations that have led me to change my mind concerning racial preferences in college admissions.

First, a few words about language. In the early days of numerically targeted affirmative action, the defenders of racial preference called its goals "targets," the opponents called them "quotas." A "target," if there is power to enforce it or to punish the failure to achieve it, rapidly becomes a "quota." It is clear why the defenders of affirmative action resisted the use of that term. It was specifically prohibited in the section of the Civil Rights law proscribing discrimination in employment and promotion, and it reminded people of the infamous practice, which was still widespread only a few years before the passage of the Civil Rights Act, of limiting Jewish admissions to undergraduate colleges and medical schools by establishing a ceiling, a "quota." Of course the "quota" for blacks in selective colleges was a very different thing: it set a lower limit to be reached, not a higher limit not to be exceeded, which was what Jews faced. But both resulted in differential treatment of individual applicants on the basis of their group affiliation, religious, ethnic, or racial.

A new war of words exists today, as exemplified in the exchange between President Bill Clinton and Abigail Thernstroin on 3 December 1997 in the televised "conversation" on race. In discussing the policies that have flowered under affirmative action, are we to talk about "affirmative action" or "racial preference"? The defenders of affirmative action prefer the former, the opponents the latter, for understandable reasons. Affirmative action includes both such measures as reaching out, advertising, selectively recruiting and training, as well as the harder form of affirmative action involved in setting a numerical target or goal. Who can be against the kind of affirmative action called for in the original executive orders of Presidents Kennedy and Johnson, which did not specify "targets" and "goals"? So the defenders of affirmative action prefer the broader term, which includes practices few object to, as well as those that many object to, hoping the good repute of the former will lead to general public acceptance of the whole package of affirmative action. Naturally the opponents want to focus on the feature that is most objectionable, direct racial preference, preferring one to another simply because of race. And as we know, the majority of people will vote against "racial preference" (as in the vote on California's Proposition 209), but not against "affirmative action" (as we saw in the vote on affirmative action in Houston).

But how we name the policies we oppose does not help us determine just what in these policies we oppose, or what we plan to do, if anything, to replace the policies we oppose. At present, the debate, and the legal cases moving through the courts, center on situations, quite common, in which students with academic records and test scores well below the minimum acceptable to an academic institution are admitted specifically because of their race, a procedure challenged in legal suits by applicants with better records who were not admitted. But, as we know, there are other practices driven by the policy of increasing the number of black and some other minority students enrolled in colleges and universities and professional schools. For example, some colleges send minority students on recruiting trips to their old high schools or to other high schools with high percentages of minority students, and will pay for such trips and arrange for students to be excused from classes. There once existed many programs-some still exist-in which minority students were brought to college campuses for a summer of intensive work to overcome academic weaknesses. An example of such an effort is the program at West Point designed to increase the number of minority students who can qualify for West Point and ultimately become officers in the United States Army. Hundreds of institutions acquire lists of minority students who have achieved a certain level in their SAT tests from the Educational Testing Service in order to target them for recruiting. All these and other programs are specifically motivated by the desire to increase the number of minority students enrolled in the institutions. Are we to oppose such programs too? They definitely demonstrate a "racial preference."

So we can see that even the apparent clarity of the term "racial preference" is not clear enough to guide us. What kind of racial preference do we wish to ban? Do we really seek to outlaw even these racially targeted practices I have described?

In this paper, I concentrate on only one issue in the entire world of affirmative action, the issue of admission to selective colleges, universities, and professional vschools, and I limit the discussion to only one group, blacks or African Americans. It is the potential impact of the elimination of racial preference for blacks in selective schools that raises the most difficult and sobering questions, because universal access to these institutions is, in one sense, emblematic of our quest for an inclusive society. Some act of bureaucratic mindlessness thirty years ago included Asians and Hispanics (of all kinds) in the groups that were to be benefited by affirmative action programs. But clearly the primary intention of affirmative action was to help blacks. Hard affirmative action started in the building trades because they excluded blacks. There was no important dispute in those professions over the denial of entry to Asian Americans, or any lengthy history, I believe, of discrimination against Hispanics. Blacks were the group specifically excluded from the building trades unions, though there was undoubtedly discrimination against others, too. It has created great confusion in discussing this issue that Asians-for a while-and Hispanics-until today-were included as beneficiaries of affirmative action. (American Indians or Native Americans were also included, from the beginning, but are really not at issue. They number less than I percent of the population. Because of their distinctive history they have long been beneficiaries, on the basis of their race, of certain benefits-e.g., the right to fish for salmon in certain rivers, to open gambling casinos on reservation land. Even if we had a strict quota requiring I percent of all admits to be Native Americans, it wouldn't agitate us much.)

Nor will I talk about women, another beneficiary class. Discrimination against women in admissions these days hardly exists, and disparities in admissions between men and women are much more likely to be based on women's tastes than on any hostility to women on the part of admissions officers or administrators of institutions of higher education.

The key fact that gives me pause when I consider the abolition of racial preference for blacks in selective institutions of higher education is the following: If there were no preference on the basis of race, the percentage of blacks in selective undergraduate institutions and professional schools would drop from the present figure of 6 or 7 percent to I or 2 percent. This would be the case if test scores alone were used to admit students. We have known this for a long time. Robert Klitgaard first set out the facts in full detail in his Choosing Elites in 1985, and Stephan and Abigail Thernstrom also address the matter in their current book, America in Black and White, using data from the Journal of Blacks in Higher Education and other sources.
The impact of such a change for Hispanics would be considerably less.

The key group to consider then in thinking about the effect of jettisoning racial preference is blacks or African Americans. While we all know that is the case, let me spell out the specific reasons why.

First, this is the group for whom this program was initiated. Blacks were the insurgents and carriers of the Civil Rights revolution of the 1960s and 1970s. Second, they play a key role in American history, in Constitutional law, in social life, and in American consciousness, one that far transcends in its importance the role played by Hispanic Americans or Asians. The Civil War was fought to free them-whatever other explanations were given at the time, or since. The major post-Civil War constitutional amendments were passed to secure their status as free and equal to white Americans, and these amendments have become the most significant part of the foundation of current American constitutional law. We commonly test the success of American society and the achievement of our hopes for it by considering the progress of American blacks. What happens to them is far more important when we judge the quality of our society than what happens to Hispanics and Asian Americans. The latter two groups are today mostly immigrants and their children. American blacks, in contrast, while joined by many immigrants in recent years, are no newcomers to American society. They started arriving only shortly after the first colonists, and were one-fifth of our population in 1790. They are still one-eighth of our population. When we consider the role of immigrants and their children, we expect they will initially have a hard time, and will in two or three generations become indistinguishable from other Americans. Immigrants will have to deal with the burdens of learning a foreign language, and overcoming the barriers posed by a distinctive culture in assimilating to American society. The fact that immigrants do poorly at first is no judgment of American society. Its generosity properly extends to admitting them, and fairness requires that they not face discrimination on grounds of race, religion, or national origin. Otherwise, they are on their own. And in fact, any significant distinction between the descendants of immigrants and white Americans long~settled in the United States fades in two or three generations. And a third reason why we concentrate on blacks: Their academic deficiency is the greatest when we compare them with the other minorities grouped together under affirmative action, and thus the consequences of the abolition of racial preference would be greatest for them.

To return to the key fact: The elimination of racial preference means the reduction of blacks, today 12 percent of the American population, 6 or 7 percent of the students in selective colleges and professional schools, to I or 2 percent of the students there.

Well, what do we think of that? One possible reaction is to shrug our shoulders and say, that's the way it will have to be until blacks improve their academic performance. I think most people would say that such a drastic change would dash our hopes of integrating blacks into American society, the way other immigrant groups of the past have been integrated.

Is this an alarmist projection? Will the elimination of the specific use of race in making acceptance decisions lead to such a result? Four points have been made in arguing that this expectation is too pessimistic.

First, there are alternatives to racial preference in keeping up the present number of blacks in selective institutions. We can use income as a basis for preference. Or we can use hardships overcome. Or we can use living in certain low-income neighborhoods, or attending certain high schools. There are problems here, and not the least is that these approaches, however we define the basis of disadvantage, would sweep into the preference pool large groups of poor whites, Hispanics, even Asians, and so these policies of replacing direct racial preference with economic substitutes will not do much to keep up the number of blacks enrolled. This was the conclusion of a study conducted by the University of California, Berkeley, before it was required to eliminate racial preference by the Board of Regents. Furthermore, insofar as these alternatives are transparent efforts to keep up the number of blacks, they might be outlawed, too, if the courts continue to strike down racial preferences.

A second point made against this grim projection: Why do we concentrate on only the most selective institutions of higher education? The figures I have cited, from the journal Blacks in Higher Education, as reported in the Thernstroms' America in Black and White, do so; but we know that the number of such institutions is small and that almost any high school graduate can find some college that will admit him or her. Many community colleges, for example, enroll large numbers of blacks; their student bodies may be more than half black, or even overwhelmingly so. We also know that success in life is not dependant upon attending the most selective institutions. So what if the most selective institutions and professional schools drop from their present 6 or 7 percent to I or 2 percent? There are plenty of other institutions, many of them of great merit, where the numbers of black students will be maintained or even increased, as those who have failed of admission in the most selective institutions downgrade their ambitions. And, as Thomas Sowell argued twenty years ago, they will do better if they attend institutions best attuned to their academic abilities.

To argue in this way, however, is to underestimate the hold that the most selective institutions have on the public mind and on the mass media, and to underestimate the significance of entry into these institutions by blacks as a measure of how America is fulfilling its obligations to achieve greater equality and integration for blacks. It did not matter much thirty years ago that Catholics or Italian Americans or Slavic Americans were not commonly found in the most selective institutions. They were attending other institutions of higher education, and in time, as we know, their achievement of higher incomes and higher positions in American society was not substantially affected. But no one much-except for Andrew Greeley-was watching where Catholics and the children and grandchildren of the great European immigration of the early twentieth century were going to college.

In the case of blacks, the matter is completely different. Everyone is watching. And the message that a sharp reduction of the number of blacks in selective colleges and professional schools will send, to blacks and others, is that there has been a radical retreat in one key measure of progress. We-that is, the critics of affirmative action-will know how to interpret this sharp drop: We are simply restoring academic standards, we will say. But there will be room for many conflicting interpretations, and one that will be forcefully put forth is that American society is abandoning its obligations to blacks. Black interpretations of such a change would be much more severe.

A third point is made concerning the sharp drop in black admissions as a result of the banning of race preference: It will send a message to schools that enroll large numbers of black students that they must do a better job of education, and to black students that they must work harder to gain admission to selective institutions of higher education. The performance of black students will improve, and numbers closer to what we now see on the basis of direct racial preference will be restored because they work harder. This seems to be the hope of Stephan and Abigail Thernstrorn in America in Black and White.

But how long will it take for the schools to improve, or for black students to get the message they must work harder? We have been trying to improve our schools for twenty years, and while there has been some progress, it has not been of the order of magnitude necessary to increase substantially the number of black students who qualify for admission to selective institutions on the basis of test scores and other measures of educational achievement. We are still struggling with school reform, and no one can give any guarantee that the gap between black achievement and that of whites and Asians will be so sharply reduced in five, ten, or twenty years, that much greater numbers of black students will qualify on the basis of educational achievement. And can we expect this academic effort and performance of blacks to increase sharply because they know preference will not be available? It is my impression that black students who today aim at college do work hard. I wonder how in,, simply coast, on the assumption their future is assured? The most able in but this has been true of the most able white students, too.

Yet a fourth argument made against the prospect of a sharp reduction the numbers of blacks in selective institutions: Does this form of affirmative action really achieve its aim, which is to raise the position of blacks in American society and to integrate blacks effectively into American society? If I admit black students who cannot compete in these institutions, they will not reach the levels that we expect the graduates of these institutions to reach. They will drop out, they will not qualify for postgraduate professional education, and they will do nothing for the black community.

But all of this is to assert more than we can presently say. It is true that if dropout rates of blacks from the selective institutions is two or three times the dropout rates for nonblack students. But dropping out has a long tradition in American higher education, and the great majority of blacks in selective institutions do graduate. They may not do as well in their tests for admission to law school and medical school and business school, but affirmative action in these institutions keeps their numbers up. They may do worse academically and in their qualifying tests for law and medicine-one thing that academic tests do predict is academic performance-but blacks do emerge from these profes. sional schools and do become professionals, with the income, influence, and prestige of professionals. One can probably see some effects of the original weakness in academic performance all the way through their careers. One would expect that fewer of the doctors would go into research, more into family practice and administration, fewer of the lawyers would go into corporate law and more into defense practice and government, and one would expect to see other variations in career-as we have seen for all ethnic and racial groups, whose members may concentrate more in one niche than another. There is research going on that will tell us more about all this, but it is at this point hard to sustain the view that affirmative action does not substantially affect the position of black Americans in American society. It is clear most blacks are willing to accept whatever disadvantages for them they see in affirmative action-the stigma on their achievements, for example-for the advantages of a larger number attaining professional and higher paying positions.

If racial preferences really are eliminated, as in California and Texas, it is clear that the percentage of blacks currently enrolled in selective institutions will drop markedly, and even if heroic measures are resorted to by the institutions, it is hard to see how the numbers of black students in these institutions can be maintained at anywhere near their present level.

The present practices of racial preference, however much they rub against the grain of a basic commitment to color blindness, can find some defense when we consider two distinctive aspects of American institutions of higher education.

First, they have rarely been bound exclusively by academic considerations in making decisions on admission. On the European continent, it is typical for universities to be so bound. Students take exams under the anonymity of a number, without even giving their name, let alone their race or ethnicity or any other information, and their eligibility for enrollment is determined solely by their standing on examinations. I wonder if any institution in the United States operates that way today. (New York City's public colleges did so operate until perhaps the 1960s.) Private institutions make exceptions for athletes, alumni children, and donors' children. Public institutions do, too, and add legislators' children. I believe the concessions that academic institutions make to admit such favored applicants are less than those they make to admit black students, except for athletes. The reduction of the academic to only one factor in college admissions is an old tradition in American life, though after World War 11 academic qualification became by far the most important factor. Institutions now rate race as important or more important for a number of reasons, Prominent among them are such decent motives as the desire to reach out to a minority that has been subjected in the past to the most intense prejudice and discrimination, and the desire to increase racial diversity among their students. There are also less admirable motives, such as the fear of disruptions by minority students and their supporters. Should they be prohibited from using race while many other nonacademic factors play a role in their admissions process?

And a second distinctive aspect of racial preferences in admissions: These are voluntary decisions, freely made by the institutions involved; they were not imposed by state or federal government, except for the special cases of traditionally black and traditionally white public institutions in the Southern states. Now, in what sense these are free and voluntary decisions is a complicated question. Some of these voluntary decisions have been taken under the threat of student occupation of presidents' offices. But many have been taken because administrators and faculty thought this was the right thing to do. They have taken such measures because they believed that justice to blacks and other minorities required it, or because they believed that diversity on the campus and in the classroom was a good thing for education. It must mean something that one neverfinds a college president or trustee opposing such programs. I doubt that even the notoriously abrasive President John Silber of Boston University has ever criticized these programs in public. One might say this is not revealing: College presidents act out of fear or liberal guilt. But it is worth considering the possibility that, placed in a peculiar position of responsibility, a position giving a perspective that ordinary faculty members don't have to consider, they act in some measure out of a sense of responsibility to nation and institution. Faculties are split on these policies, but they are far from universally against them. When polled in secret surveys where they need have no fear of exposing themselves to the charge of racism- a charge that normally is the consequence of any expression of skepticism about affirmative action in college or university settings-substantial numbers vote for racial preference. So there is some element of voluntary choice in affirmative action programs. Some institutions go very far to reach what they consider a reasonable number of black students. Some institutions do very little, perhaps nothing. Do we want to impose on all of these institutions, with all their various reasons for the kind of affirmative action programs they have, a common standard which says, stop, no racial preference at all?

Richard Epstein has made an important point in discussion of affirmative action in employment, which we may well take into account in considering racial preference in admissions. The legal situation in employment is of course quite different from that in admissions. In employment, targets or quotas are in effect imposed by the Office of Federal Contract Compliance Programs, the Equal Employment Opportunity Commission, and various courts. They are not voluntary. The freedom of choice of the employer is restricted. Institutions of higher education do not on the contrary have their freedom of choice in making admissions decisions restricted by government-they voluntarily decide whether to have an affirmative action program, and what kind. Their freedom of action will rather be restricted if racial preference is banned. Richard Epstein has proposed full freedom of action in employment and promotion for employers. Some will discriminate in favor of blacks, some will give no preference, some will discriminate against them. Overall, freedom of action is enhanced, with, one hopes, no deleterious consequences for blacks.

This freedom of action, which Epstein considers a desideratum for employers, is what we presently have in college admissions. Should we not want to retain a situation in which institutions of higher education have autonomy to determine just what their affirmative action programs will be?

One reason academics are skeptical about what this freedom actually amounts to is that they are convinced that the forces of political correctness and multiculturalism are so strong that faculty and administrations will be powerless to rein in and make sensible changes to racial preference programs, many of which are indeed excessive. So they need to resort to such measures as state constitutional amendments and litigation in federal court in order to limit or abolish these programs. There is real weight to this response. Yet let us remember that the effect of judicial decisions is clumsy. A decision on the basis of constitutional principles does not easily make fine distinctions. It can go so far as to say, "race may be a factor," or "race may never be a factor," but it cannot give precise guidance. Perhaps the courts will permit an institution to reach out in the "soft" style of earlier affirmative action. Perhaps not. If read literally, the language of the Fifth Circuit Court's decision against the University of Texas law school might ban all efforts at recruitment.

It now seems, paradoxically, that the problem will be solved the way most of these problems are solved, by new rulings in Constitutional law. As people who believe in the autonomy of the university, what do we think of that?

What we can do to retain college and university and professional school admissions as an area in which the institutions have a large degree of autonomy in making decisions, I do not know-probably very little. I would like to retain this autonomy for the educational institutions, and am willing to tolerate a period in which they, or some of them, do this badly, with the hope that in time, and with the involvement of faculty and administrators making the best decisions for their institution and the nation, they will do it well. I do not want the question of the admission of blacks to selective institutions determined by the stark application of color blind principle today, because I think the radical reduction of blacks in selective institutions of higher education would be a terrible blow to their prospects in American society, and because it would reduce sharply the degree to which they can participate at the highest levels in our society. This is a goal we all accept. A sharp reduction in the number of blacks in selective institutions of higher education would mean a retreat in achieving it.

1. Nathan Glazer, Affirmative Discrimination (New York: Basic Books, 1$ with new introduction; reprinted in 1987 with a new introduction by Harvard U$