The Sixth Circuit Court of Appeals' ruling two weeks ago throwing out Michigan's ban on racial preferences in college admissions definitely deserves a place of honor in any top-10 list of judicial sophistries. But even if the Supreme Court reverses the ruling, universities will still find artful ways to promote their sham diversity. Instead of seeking more court intervention, defenders of colorblind campuses might serve their cause better by simply demanding more university transparency.
The Sixth Circuit has been trying to thwart Michigan's quest for race neutrality in government hiring and admissions ever since two lawsuits challenging the University of Michigan's admission practices made a stop in its chambers en route to the Supreme Court about a decade ago. The Supreme Court eventually outlawed the blatant racial double standard that the school's undergraduate program employed but allowed its law school's more individualized consideration of race. However, Michigan voters in 2006 amended the state constitution by a 58 to 42 percent margin barring all discrimination -- big or small -- by race, sex and national origin.
However, the Sixth Circuit has now ruled that Michigan's ban against discrimination is itself discriminatory. It violates the 14th Amendment's guarantee of equal protection because it leaves minorities who want racial preferences in admissions no option but to mount a counter-referendum. But students who want, say, their family connections or their socio-economic background considered can lobby the admissions committee or the university officials or the governing board. This puts a structural burden on the rights of minorities.
But the same might be said, points out Roger Clegg of the Center for Equal Opportunity, of a Ku Klux Klan member who wants a whites-only admissions policy. Would the court have qualms about placing a "structural burden" on his rights?
Michigan's attorney general is appealing the ruling to the Supreme Court. If the court's conservative majority sides with him and rules against the University of Texas' race-based admissions policies in a separate case, opponents of affirmative action believe that a new age of colorblind campuses will dawn in the country.
But that is a triumph of hope over experience.
For starters, throwing out racial preferences that benefit minorities while leaving intact (as both Michigan and Texas do) alumni preferences that predominantly favor whites will not advance the cause of racial justice. Why? Because it will open minority seats to competition by whites but not white seats to competition by minorities.
Furthermore, regardless of what the court decides, neither private nor public universities will give up racial preferences: private universities because the rulings won't apply to them, and public universities because they will ignore the rulings.
This is not a hunch. This is what they've always done.
The University of Texas, for example, pioneered the so-called 10 percent solution for the explicit purpose of getting around the Fifth Circuit Court's ban on race. Under this solution, it automatically admits the top 10 percent of every school's graduating class, including inner-city schools, something that allows it to boost its minority numbers while pretending to be race-neutral.
The University of Michigan, meanwhile, has replaced race with its proxy, ZIP code, giving applicants from predominantly minority neighborhoods a leg up. The upshot is that, despite the ban, its minority numbers have barely budged, according to University of California, Los Angeles, law professor Rick Sander, who obtained the university's admissions data through a Freedom of Information Act request.
Forcing universities to give up such shenanigans would require constant scrutiny and legal challenges by watchdog groups that universities will easily outspend and outlawyer.
The best among bad options might be full-disclosure laws requiring universities that receive federal funding to reveal what admissions standards they use for which group -- minorities, alumni, athletes, donors -- along with their graduation rates. This will expose any admissions double standard whether toward minorities or rich white legacies, causing elite universities to risk their reputational appeal.
What's more, race-conscious admissions policies produce an unusually high dropout rate among minorities by placing them in overly challenging academic environments, Sander has found. Publicly available graduation rates will allow minority kids to pick colleges commensurate with their level of preparedness, preventing them from being set up for failure.
Universities are out of control, no doubt. But informed consumers might hem them in more effectively than court diktats.
Shikha Dalmia is a Reason Foundation senior policy analyst.Michigan Sixth Circuit