College Admissions, Let’s Not Break The Law

David Leonhardt, an economics columnist for the New York Times, recently visited the University of California at Los Angeles (UCLA) and took a careful look at the current admissions process of that campus in the wake of Proposition 209, the California ballot initiative that outlawed race and gender preferences in public education, as well as in public employment and contracting. In particular, Leonhardt examined the application and the fate of one Francis Harris, a black student from Sacramento, who became the case study for his article. Here is how Leonhardt describes Ms. Harris:

She has managed to do very well in very difficult circumstances, and she is African-American. Her high school, in the Oak Park neighborhood of Sacramento, was shut down as an irremediable failure the spring before her freshman year, then reopened months later as a charter school. Midway through high school, her father developed heart problems and became an irritable fixture around the home. She also discovered that he was not actually her biological father. That was a man named Leroy who, when her mother took Harris to see him, simply said his name was George and waited for her to leave. In Harris’s senior year, her mother lost her job at a nursing home and the family filed for bankruptcy . . . Harris, for instance, scored a 22 on the ACT test—slightly above the national average and well below the U.C.L.A. average.

The underlying question posed by Leonhardt with regard to Harris is the extent to which her “disadvantages” should factor into her application for admission to U.C.L.A. As did Leonhardt, most college admissions officers look primarily at one facet of Harris’s life: “. . . she is African-American.” They start from the premise stated by Peter Taylor, a good friend mentioned in Leonhardt’s column, that “race has an enormous effect on the lives of applicants.”

The fact of the matter, however, is that while Harris’s life circumstances have been “difficult,” difficult circumstances are not confined to black students. There is absolutely nothing in the description about Harris that is uniquely an obstacle confronted by blacks. Whites have also been known to file for bankruptcy and to have parental inadequacies. Asian and white kids also attend unstable schools. Yet, because Harris is black, every disadvantage in her life is interpreted as a problem engendered because of her “race.” And, those who support race preferences want to use the tool of “affirmative action” to compensate for those supposed “effects of being black.” They want to do that which the United States Supreme Court forbids them from doing: “curing societal ills.” In the absence of Prop. 209, they could hide behind the fig leaf of “diversity,” but Prop. 209 removed their ability to do that in California.

U.C.L.A administrators and individuals such as Taylor operate from the perspective that Prop. 209 has “created a patently impossible situation.” They want to admit more blacks but recognize that “at every rung of the socioeconomic ladder, the academic record of black students is worse than that of other groups.” In addition, the socioeconomic conditions of many Asians, for example, are worse than those of blacks. That is why Taylor says in Leonhardt’s column that “there is no proxy for race.” To their credit, they would prefer to solve the problem without “breaking the law,” although I am certain that breaking the law is not a fatal challenge for them. The temptation to skirt or subvert the law is certainly there. Chris Reed, an editorial writer for the San Diego Union-Tribune, called Leonhardt’s piece “a 4,800-word article explaining and implicitly praising the possibly illegal ways that UC officials got around Proposition 209 and its ban on racial considerations in admission.”

The irony is that in a formally “colorblind” admissions structure—no race “boxes” on the application, no encouragement to applicants to convey their racial background in essays, no intent on the part of admissions officers to find proxies for race—U.C.L.A. could admit the Francis Harris’s of our society with few complaints from hardly anyone.

Most Americans do not expect academic institutions to make their admissions decisions based solely on grade point averages and standardized test scores. As a UC Regent, I was the one to include what ultimately become known as “comprehensive review” in my resolution (SP-1) to end preferential treatment. If U.C.L.A. would simply accept the will of the people that race should not be a factor, either explicitly or “under the table,” abandon their foolish attempts to “level the playing field” based on race, and establish their credibility with the public as a fair and race-neutral entity, then they could admit whomever they want and carry the presumption of innocence about race that needs to become the model of the future for pluralistic societies.

Anyone familiar with admissions and the U.C.L.A. experience for the 2007 academic year should certainly know that U.C.L.A. has somehow broken the law. When Tom Lifka, a U.C.L.A. assistant vice chancellor who oversees admissions, said “It’s the fallacy of 209 that you can immediately move to a system that doesn’t take account of race and that treats everybody fairly,” the implicit message was that U.C.L.A. is still using race, but perhaps not to the extent that was previously the case. To believe otherwise doesn’t pass the giggle test. The problem is that one year’s experience is not the smoking gun that will be necessary to prove discrimination. But, one or two more years of statistics that parallel this year’s and the legal inoculation that U.C.L.A. believes it has will become quite tenuous. As it is, it is my view that U.C.L.A. is a lawsuit waiting to happen.

Considering all of this, Leonhardt asks the very important questions that begged to be asked: “So what if U.C.L.A. is somehow taking into account the disadvantages that black students face because of their race? Isn’t that legal? And isn’t it just?” First, there is no evidence that the disadvantages that black students face result uniquely from their race. If Francis Harris is the example of such disadvantages, then the proponents of race preferences have a very tough set of circumstances to overcome to make their case that blacks deserve a preferential treatment in college admissions. Second, it is not legal to use race as a way of assisting black students overcome the supposed disadvantages that they face because of their race. The Supreme Court and the people of California have already passed judgment on this question. Finally, it is not “just” for public institutions to practice discrimination based on the “race” or skin color of an individual. If that fact is not settled by now, then the past 40-plus years of American history have taught us nothing.

The most useful lesson to be learned from Leonhardt’s article is that it would be prudent for those on both sides of the race preferences in college admissions debate to work toward some acceptable compromise for the good of our nation. I have a proposal. To begin, there can be no middle ground about the use of race. This is not an area where one can fudge or cheat just a little bit. Either we permit the use of “race” in American life or we don’t. I say, “We don’t!” The proponents of race simply must relent on that point.

The opponents of race preferences tend to believe in academic meritocracy—and I am among them. Where we must compromise, however, is in how we view “merit.” We must also understand the national imperative of providing access to low income students and to those who are confronted with disadvantages that impede their ability to lead productive lives and to demonstrate their potential value to American society. It is not in our national interest to have hordes of people standing on the sidelines seething with anger because they cannot obtain a ticket to gain access to a better life in America. That ticket for most of us is higher education. Thus, those of us who believe in academic meritocracy must broaden how we view “merit.” That largely means empowering admissions officers to search for talent from among all students and not just the “A” average, high SAT students. In short, socioeconomic “affirmative action,” in a colorblind admissions process, can be that compromise.