Institutionalized Racism

National Review , September 12, 1994

In the1978 Bakke case, the deciding opinion held, in Justice Powell's typically Delphic fashion, that discrimination against whites is every bit as illegal and unconstitutional as discrimination against blacks, except that just a little of it would be okay. A state medical school could not, therefore, simply set aside a number of seats for blacks and other racial minorities, but it could count an applicant's minority race as a "plus factor" in granting admission. The result was to initiate a fraud which has since been practiced by probably all leading institutions of higher education in the country, and certainly by the University of Texas School of Law.

For over 25 years, the UT Law School has practiced "affirmative action" in admissions in order to obtain an entering class that would be about 5 per cent black and 10 per cent Mexican-American. The school is highly selective: in 1992, the whites it admitted had a median LSAT in the 93rd percentile and a median college GPA above 3.5. If these admissions standards had been applied nonracially, the entering class would have had very few blacks‹probably less than 1 per cent‹or Mexican-Americans. The school, therefore, simply established a separate and lower set of admissions standards, according to which self-declared black and Mexican-American applicants are in effect automatically admitted with scores at which a white applicant would be automatically denied admission. In addition, the school recruits blacks nationwide, and grants them and MexicanAmericans scholarships that more needy and better qualified whites are denied.

On a lawsuit filed by four rejected applicants who would have been automatically admitted had they not been white, a federal district judge has now held that the school's admissions practices did indeed violate the plaintiffs' constitutional rights. He refused to order their admission, however, because they did not meet what he conceded was an "impossible" requirement of showing that they - personally would have been admitted had it not been for the unconstitutional racial discrimination. After all, they are merely four out of thousands of whites with good scores who were denied admission.

The judge also refused to award the plaintiffs more than $1 each in damages because he found that the school had violated their constitutional rights in good faith; the law professors, including some nationally known constitutional authorities, apparently just didn't understand the law. Racially preferential admissions were fully justified, in his view (contrary to Bakke), simply because the "meager representation" of blacks and Mexican-Americans that would otherwise result "would be woefully inadequate in a state university supported in part by revenues from all state residents." He did not explain why white residents should pay taxes for an institution that explicitly disfavors whites.

Perpetuating the Bakke fraud, the judge found that the law school had cured its constitutional violation after the lawsuit was filed by discontinuing the use of a special minority-admissions subcommittee and having all applicants considered by a single committee. The change, supposedly putting blacks and Mexican-Americans into competition with whites, will not in fact make the slightest difference. The academic achievement gap between whites and members of preferred races is much too large to be bridged by a racial "plus factor." At Berkeley, for example, the median combined SAT score for admitted blacks is more than 200 points‹representing several years' difference in academic preparation‹lower than the median for whites. In the 1992 UT Law School entering class, the median LSAT for blacks -- after recruitment efforts and financial inducements -- was 15 percentile points lower than the white median, and the Mexican-American median was 18 points lower. The only way the school can achieve its 5 per cent and 10 per cent "goals," explicitly approved by the judge, is by continuing to do what it did before the suit: simply taking the best black applicants and the best Mexican-American applicants until the desired numbers are reached.

The law school and the university have correctly greeted the decision as a near total victory, a vindication of the law school's vigorous "affirmative action" efforts. Unless reversed on appeal, its effect will be to guarantee that racial preferences, introduced as a "temporary" measure a quarter-century ago, will never end.

[Return to top]
Return to the Race-Consciousness and Race Blindness Page]
[AAD Homepage]

Carl Gutierrez-Jones
Department of English
University of California Santa Barbara, CA 93106
E-mail: carlgj@humanitas.ucsb.edu