Colleges Will Just Disguise Racial Quotas

Richard Sander is a professor of law at UCLA and director of its Empirical Research Group.

In its affirmative action decision last week, the Supreme Court announced that explicit racial boosts, like the 20 points awarded to blacks by the University of Michigan’s undergraduate admissions office, are unconstitutional. But “individualized assessments” of applicants (like those used by Michigan’s law school) that factor in race among other considerations are not only acceptable but highly desirable.

Alas, as nearly every admissions officer in American higher education must know, this distinction -- as laid out by Justice Sandra Day O’Connor -- is either very naive or very cynical. Nothing could be easier than to dress up a point system -- or a racial quota, for that matter -- as an “individualized assessment.”

Law school admissions, including Michigan’s, are notoriously dependent on numbers. At almost every American law school, 90% of the admission decisions can be explained by knowing only four things about each applicant: her LSAT score, her undergraduate college, her GPA and her race. Black applicants -- at Michigan and most other schools -- receive enormous, easily quantifiable boosts, despite official assertions to the contrary.


The court, in Justice O’Connor’s voice, seems to be saying: “Create diversity any way you like -- but for heaven’s sake, don’t be honest about it!”

In California, where the voters banned (through Proposition 209) the use of race in state university admissions in 1996, disguising affirmative action is an art form. In 1997, when strict compliance with Proposition 209 produced a first-year class with only one black student, Berkeley’s Boalt Hall law school was roundly criticized, even by the leaders of the Proposition 209 movement, who believed the school should have been able to reach out and recruit more minority students.

Boalt learned its lesson. The school created a system of “individualized assessment” of applicants, dramatically increasing its admissions of black and Latino applicants with low test scores while, not accidentally, keeping the test scores and GPAs of its white and Asian admittees as high as ever -- a feat that is impossible without taking race heavily into account.

Today, Boalt is nearly as racially diverse as it was before Proposition 209. Its evasion of the law is so notorious that it was implicitly acknowledged by both sides arguing the Michigan cases before the Supreme Court.

My academic home, UCLA Law School, has tried hard to be more principled, but its students and faculty both badly want more racial diversity, and the lure of skirting the law without consequences has proved irresistible.

In 2001, the school adopted a special admissions track for students who express an interest in “Critical Race Studies,” a “program of study focusing on the nexus of race and the law.” Students who apply to the program are, not surprisingly, much more likely to be nonwhite than UCLA law applicants in general. Of these applicants, those who are black or Latino are much more likely to receive the staggering numerical boosts that push them into the admissible pool. But this, of course, is done through an “individualized assessment.”


The school also has an admissions track for candidates who are at a socioeconomic disadvantage. This track -- which I helped design -- began as a sincere and successful effort to increase the number of students from lower-income families and communities. From the beginning, of course, such preferences gave some disproportionate benefit to blacks and Latinos, but not nearly enough to satisfy the school’s faculty or students. So the program has been steadily changed in the years since to give heavier weight to those socioeconomic factors that correlate with race.

Boalt and UCLA Law School are merely examples of a pervasive pattern at the University of California: academic programs rigging their admissions systems to admit underrepresented minorities with lower scores and weaker qualifications through the back door.

Proposition 209 can be violated with impunity in part because it has no internal enforcement mechanism and because, after all, most of the state’s leaders have called for its repeal. But something more is going on -- something captured in O’Connor’s ambivalent opinion in the Michigan cases.

It seems that many of those in the American elite who would recoil at the idea of explicit quotas are happy to tolerate more subtle systems that accomplish the same thing. Even many avowed opponents of affirmative action seem unprepared to live with the full consequences of its abolition.

The Bush administration, for instance, has singled out for praise a Texas program under which students in the top 10% of their high school class are guaranteed admission to state colleges. Because Texas high schools are highly segregated, this program ensures slots for black and Latino students.

Affirmative action in higher education, as we practice it in the U.S. these days, may arguably provide some help for upper-middle-class minorities. Mostly, however, it allows us to pretend that our racial problems are simpler than they really are -- that a little “individualized assessment” can give us a fully integrated society, and that everything will be just fine in a few more years.


Meanwhile, we have done little to address, or even talk about, the real problems: the dramatic test-score gap across racial lines, the weaknesses of inner-city schools and the intensity of urban racial segregation.

Allowing large and systematic racial preferences while pretending to frown upon them gives us the worst of both worlds: complacency about racial disparities and a code of silence that prevents us from measuring, evaluating or assessing what we have wrought.