Seeking Affirmative Action Success

A New York University law professor who has analyzed Supreme Court quota cases, like many proponents of affirmative action, is hard put to give an estimate of something diversity offices make a goal of—the increase in enrollment in college of minority students using racial preferences.

“I don’t know that it would have any change on the number of people going to college,” Samuel Estreicher said on Constitution Day at the Cato Institute. “It might change the mix of schools attended.”

The question of how many blacks have benefited from a policy designed to aid them is one that usually does draw blanks and there is some evidence indicating that it has little if any impact despite four decades of expensive litigation. For one thing, African-American enrollment in law school is going down, as Emmanuel Opati reports on this site.
Last year, we reported that the dean of North Carolina Central University’s School of Law said that “Deans of law schools are concerned about the low numbers of minorities applying to law schools.” Three years ago, we reported that Georgetown law school professor Harold Holzer, an affirmative action advocate, put the minority enrollment gains in higher education at one to two percent.

“I don’t like the term affirmative action,” Dr. Estreicher said at the September 17th event at Cato this year. “I prefer affirmative outreach to racial preferences.”

Small wonder: In the course of this research, Dr. Estreicher has run into some particularly inane attempts to impose racial goals and timetables on schools. “A high school in Seattle used the 60-percent-black rule which was suspended in 2002,” he remembered at Cato, a libertarian think tank. “The government did not want to use economic status because it would hurt the feelings of poor blacks.”

In the former instance, the government attempted to match the racial composition of the school to the demographics of the region. In the latter case, public officials balked at using aid to the poor as a rationale for admitting disadvantaged students, including those from minority groups, for politically correct reasons, even though these were the very pupils that civil-rights laws were originally designed to protect.

“We customarily think of ‘equal protection’ from the standpoint of preventing the state from visiting physical harm either directly through its instrumentalities or indirectly by withholding the customary protective force of the law and law-enforcement authorities,” Dr. Estreicher observes in an article in the Cato Supreme Court Review. “But because the state can also violate equal protection by distributing goods and services or other valuable benefits or opportunities to members of a favored group rather than to those of a disfavored one—and, indeed, the classic concern over withholding of law- enforcement resources is itself a form of discriminatory distribution of a government benefit—a better conceptual approach might be to think of equal protection as based on a principle of state neutrality or state non-preferment of members of one racial group over those of another.”

Malcolm A. Kline is the executive director of Accuracy in Academia.