Bakke to the Drawing Board

Illustration by Robert Neubecker

The Supreme Court’s famous 1978 Bakke opinion, on affirmative action, never made any sense. The justices announced on Monday that they will rethink it. Bakke held that the Constitution forbids public universities and other government agencies to use rigid racial quotas but does not forbid the use of race as a “factor” among others. This decision has been popular, because it seems like a reasonable enough compromise between the view that reverse racial favoritism is unobjectionable and the view that it is offensive in any form.

Trouble is, the Constitution is not supposed to split the difference. It is supposed to declare basic principles. And as a matter of principle, there is no difference between considering race as a factor and considering race as a quota. University admissions are an all-or-nothing proposition: You’re either admitted or you’re not. And race either made the difference or it did not. It doesn’t matter to the person who loses a place due to affirmative action whether the particular mechanism was an absolute exclusion from some part of the available places or a partial penalty in competing for all the places. Every place that goes to a different person because of race is a quota of one.

The refusal of most affirmative action supporters to acknowledge this unavoidable logical truth—their naive or cynical embrace of Justice Lewis Powell’s wiggy notion in Bakke that quotas are bad but race-as-a-factor is OK because they do it that way at Harvard—leaves supporters quite rightly scared of what the court might do when it reconsiders the question from scratch.

But the other side of the Bakke case has an even bigger logical hole. Alan Bakke was a white applicant for a place at a University of California medical school. Sixteen places out of 100 in the class were reserved for minorities. Bakke had better credentials than most of the black students who were admitted under this quota, and the Supreme Court ruled that he therefore was entitled to a place. Undoubtedly, Alan Bakke would have been admitted if he had been black. But that’s not the right question. The right question is whether, as a white, he would have been admitted to medical school if all those places weren’t reserved for blacks.

The same question arises in the current case, Grutter v. Bollinger. One of the three plaintiffs, Barbara Grutter, applied to the University of Michigan Law School when she was 43, 18 years after graduating from college with a 3.8 grade average. With a flurry of statistical studies, Grutter’s lawyers proved the obvious—that blacks have a much easier time getting into Michigan Law School than whites with similar credentials. The school conceded that it aims for 10 percent to 12 percent of each year’s entering class to be from the usual list of minorities. The school says race is just a “factor” in admissions policy. Grutter’s side says no, it is a “super factor.”

Maybe it’s even a “super-dooper factor.” But it probably did not keep Barbara Grutter out of Michigan Law School. Figures from a representative year included in court documents indicate that the school gets about six applicants for every available place, and that even among those with Grutter’s impressive GPA, your chance of getting in is about 1 in 3. Even assuming, implausibly, that every single one of the special-treatment minority students was less qualified than Grutter and would not have been admitted if they were white, that would have improved Grutter’s own chances by about one-eighth. The likelihood that affirmative action done her in is very small.

And while we’re playing “what if,” we should also consider the effect on Grutter’s chances if she found herself competing against blacks and other minorities who had experienced the same variety of advantages and disadvantages as the white candidates in the applicant pool. One anomaly of affirmative action law as it now stands is that courts may allow—or even require—reverse discrimination as a “remedy” for past discrimination, even as they forbid institutions to practice it voluntarily. The Grutter case could make this anomaly worse by establishing that racial diversity alone is never a good enough reason to favor minorities.

The “remedy” loophole applies to past discrimination by a specific institution, not to general discrimination in society. And of course it is impossible to measure the impact of that general discrimination over centuries on particular individuals today. There is no guarantee that any particular beneficiary of affirmative action has had it worse than any particular victim of it, and no reason at all to suppose that Barbara Grutter is responsible for the nation’s past and present failures of equal opportunity. But in applying for a place at a highly selective law school, she surely benefited from the special burdens history has put on some of her competitors. And if justice entitles her to the higher chance of admission to Michigan Law School that she would have enjoyed if there was no reverse discrimination, that calculation should also reflect the lower chance she would have had if there was no discrimination of the traditional sort either. Putting all this together makes it even less likely that unfair discrimination kept Grutter out of law school.

Affirmative action is a grievance machine: That is probably the worst thing about it. The Michigan Law School rejects the vast majority of people who apply for admission. Only an unidentifiable few are victims of reverse discrimination, but for each one there are dozens or hundreds who believe they are racial victims or suspect that they might be.

A feeling of grievance can be real even when the grievance itself is not.

Critics of affirmative action, such as the conservative legal group that engineered the Grutter lawsuit, note accurately that this policy exposes some of the most sensitive nerves in American society. Their concern would be easier to take seriously if they weren’t methodically and unjustifiably rubbing those nerves raw.