The NAACP's Fight for Racial Preferences in California

The Supreme Court will revisit affirmative action, worrying many advocates of officially sponsored racial preferences.  But proponents of racial preferences are actively seeking to restore them in the state of California.

According to the Los Angeles Times, the Los Angeles chapter of the National Association for the Advancement of Colored People is urging people to support racial preferences.  The NAACP wants people to file friend of the court briefs in a case before the United States Court of Appeals for the Ninth Circuit that is challenging California's racial preference ban.  The ban began as the California Civil Rights Initiative and later became Proposition 209 when it was placed on the ballot and approved in 1996.  Proposition 209 amended California's Constitution, adding that the "state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting."  The Times reports that Proposition 209's "opponents cite a July opinion by the 6th Circuit Court of Appeals, which overturned a similar law in Michigan, as new ammunition for their cause."

The Sixth Circuit case is Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality by Any Means Necessary (BAMN), et al. v. Regents of the University of Michigan Board of Trustees of Michigan State University, et al., 652 F.3d 607 (6th Cir. 2011).  The ruling is based on the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, which states that no state shall "deny to any person . . . the equal protection of the laws."  In Coalition, two out of three judges, Ransey Guy Cole, Jr., and Martha Craig Daughtrey, both nominated by President Bill Clinton, ruled that the 14th Amendment means that states cannot prohibit the granting of racial preferences to individuals who are members of racial minority groups.  These two judges reached this conclusion without citing anything in the legislative history of the Fourteenth Amendment that would contradict its plain text.

Instead, they relied upon language from two prior opinions of the United States Supreme Court. However, these opinions overturned laws that had the effect of overturning and making it more difficult to enact anti-racial discrimination legislation.  Therefore, their reliance on the prior opinions was misplaced because Proposition 209 embodies the principle of anti-racial discrimination.

I know what the proponents of racial preferences want.  A couple of years before Proposition 209 was passed, I sued the Regents of the University of California and obtained raw admissions data for the 1993 entering class at UCLA School of Law.  The documents I obtained revealed that in 1993, over 5,200 applicants were competing for 350 spaces in the fall entering class at UCLA Law.  Upon receiving UCLA Law's admissions decisions, at least 52 of these applicants may have been very surprised.

Thirty of these 52 were rejected despite their undergraduate GPA's of 3.5 and higher, and Law School Admission Test scores above the 92nd percentile.  Three of these 30 identified themselves as Asian; the other 27 identified themselves as white or declined to state their race (W/DS).

In contrast, 22 of these 52 were offered admission although 13 who identified themselves as black had GPA's of less than 3 and LSAT scores below the 80th percentile; six who identified themselves as Latino had GPA's of less than 2.94 and LSAT scores below the 71st percentile; and three who identified themselves as Native American Indian had GPA's of less than 3 and LSAT scores below the 71st percentile.

No offer of admission was made to any W/DS applicant having a GPA less than 3 and an LSAT score below the 80th percentile.  This was despite the fact that 10 of the rejected W/DS applicants in this lower range had GPA's equal to or above 2.9 and LSAT scores equal to or above the 75th percentile -- a feat matched by only one of the 22 black, Latino and Native American applicants discussed above who were offered admission.

UCLA Law did more than simply reject 30 highly academically qualified W/DS and Asian applicants while offering admission to 22 blacks, Latinos and Native Americans with far lower academic qualifications.  It also treated academically average individuals in a manner that suggests that race was a large factor in the admissions decision.

Among applicants with GPA's ranging from below 3.3 down to 2, and LSAT percentile scores ranging from below the 84th down to the 50th, 42 of 122 blacks, 32 of 155 Latinos and three of 18 Native Americans were offered admission, while none of the 201 Asians and only one of the 453 W/DS applicants in this range was offered admission.  This was despite the fact that among those in the upper level of this range, whose GPA's ranged from below 3.3 down to only 3, and whose LSAT percentile scores ranged from below the 84th down to only the 75th, there were 127 W/DS and 35 Asian applicants.

It might be argued that race was not a significant factor in the admission offers to these 77 black, Latino and Native American applicants with average academic qualifications because they may have had other evidence of personal qualities warranting their admission.  But that argument implies that only one of 654 W/DS and Asian applicants in this range had such evidence -- a dubious proposition.

There were 2,833 W/DS applicants.  The Asian applicants totaled 1,051, while 487 were black, 563 were Latino and 73 were Native American.  The rest were identified as Other (Non-White).

In summary, the documents showed that some W/DS and Asian applicants with high academic qualifications were rejected while some blacks, Latinos and Native Americans with far less academic qualifications were offered admission.  In contrast, W/DS and Asian applicants in this same lower range were not offered admission.  The documents also showed that average academic qualifications still allowed for the admission of blacks, Latinos and Native Americans, but virtually eliminated the possibility of admission for W/DS and Asian applicants.

Some black, Latino and Native American UCLA law students may have had far better legal skills and may have made far better lawyers than some white and Asian students.  These minority students might have been offered admission even if their race was not a factor.  However, thanks to UCLA Law's admissions policy, such black, Latino and Native American students now have suspect credentials.  UCLA Law's policy has succeeded in stigmatizing, to a degree the Klu Klux Klan only could dream about, those black, Latino and Native Americans who could have gained admission without a racial preference. 

Are there any black, Latino or Native American UCLA law students who would like to have won their admission strictly on the basis of their individual abilities, without regard to their race?  Are there any who resent being stigmatized by UCLA as individuals who were not good enough for admission without consideration of their race and the race of their competitors?  Are there any who wish to be judged on the content of their character rather than on the color of their skin?

The intent of those who enacted the Civil Rights Act of 1964 was to encourage hiring and promotion of the best qualified individuals without regard to race.  They shared Martin Luther King's belief that a person should be judged by the content of one's character, not by the color of one's skin.

Some proponents of racial preferences argue that people get better representation from lawyers of their own race.  Under this view, a white employer could refuse to hire minority lawyers on the basis that because of race, the minority lawyers cannot represent the firm's white clients as well as white lawyers.  Those of us against racial preferences are in favor of prosecuting such an employer.

Moreover, black, Latino and Native American attorneys are going to work on cases that have nothing to do with race or minority clients.  Whatever special abilities they may have for handling race-related cases will not help them when race is not material to the case.  Assuming, as all law schools do, that undergraduate grade-point averages and LSAT scores are important indicators of intellectual ability, if you know nothing else about two lawyers competing to represent you in a case where race is immaterial, except that one was probably admitted under a program where intellectual standards were reduced and the other was admitted under more rigorous standards, whom do you prefer to represent you?

Some proponents of racial preferences fear under-service of the minority community if too few minority lawyers were produced.  As long as personal injury, civil rights and other cases can be taken on contingency and the cases are meritorious, there will not be a shortage of white lawyers to take the cases.  Additionally, every black, Latino and Native American client who can pay an hourly fee for legal services will find a lawyer, even if all the lawyers are white.  The operative color for most lawyers, of all races, is not black, brown, red or yellow -- it is green. For those without money, charitable legal services are available for people of all races.

Some proponents of racial preferences argue that ideas about fear and dislike of the police would not have come about if it were not for the minority attorneys, law students and advocates who voiced the experiences of their racial communities.  Long before there were racial preferences for minorities, at a time when there were racial preferences for whites, many white attorneys and law students fought against racially bigoted police practices.  None of these whites had to be a direct victim of these policies in order to recognize them as evil and understand their effect on the direct victims.

Some proponents of racial preferences argue that the quality of an applicant can be measured by factors additional to the GPA and LSAT score.  Some cite to ethical behavior as an example.  Additional factors like perseverance, moral courage, intellectual creativity unmeasured by GPA and LSAT should all be utilized as long as they are given appropriate relative weight.  However, the documents I obtained proved that UCLA Law tended to find these additional factors in relatively low-scoring blacks, Latinos and Native Americans, not in similarly scoring whites and Asians.  The argument that race is only one of several additional factors rings hollow when some individuals, because of their race, don't get the benefit of being evaluated by those additional factors.

Before Proposition 209 proponents of racial preferences were willing to accept the negative effects of their policies in order to perpetuate their racial utopia.  The nationwide attrition rate (for academic reasons) in ABA accredited law schools was over three times higher for blacks and Hispanics than it was for whites.  Also, the July 1994 California bar passage rates for first-time takers were significantly lower for blacks and Hispanics.  I don't believe this had anything to do with race.  Whites and Asians would perform just as poorly if the same percentage of their ranks were filled with B and C students, rather than A students.

Some racial preference proponents say they will accept poverty preferences.  But I am unaware of any data showing that racial preferences must be used in order to admit a greater proportion of poor applicants.  Nevertheless, my position that applicants best qualified to study law should be admitted over less qualified applicants implicitly rules out a poverty preference.  But it does not rule out consideration of an applicant's poverty to the extent that it makes the applicant's grades and test scores unreflective of the applicant's true intellectual ability.

Proponents of racial preferences see no problem with a prestigious university that offers admission to 3,000 applicants, of whom 300 are black and other racial minorities with at least good grades and test scores, if not in the excellent range of most other admitted applicants.  But if you know nothing else about two university students, except that one was probably admitted under a program where intellectual standards were reduced and the student received a preference for being the child of an alumnus, and the other was admitted under more rigorous intellectual standards without receiving any nonmerit-based preference, what are you going to think about these two students?

Is the answer any different when the preference is based on race rather than an alumni relationship?  A nonmerit-based preference program based on an individual's physical appearance or surname is no less a badge of inferiority than the one condemned in Brown v. Board of Education.  Thanks to racial preference programs, any of the 300 students admitted to the prestigious university described above who attend the university, including those who deserved admission without the racial preference, will wear that badge.

Some proponents of racial preferences argue that despite their low grades and test scores, they attended top-ranked schools because of racial preferences and did very well.  There is no dispute that some applicants, of all races, will perform at a level beyond what the evidence available at the time of their admission indicates.  The issue is whether low-scoring white and Asian applicants should be given a lessor opportunity than black and Latino applicants simply because of their race.

These same proponents of racial preferences are silent about the fact that simply because of race, low-scoring white and Asian applicants were not given the same opportunity as them.  Their silence about the unfairness done to the low-scoring white and Asian applicants indicates their willingness to treat people primarily as members of racial groups, rather than as individuals.  This diminution of individual dignity is at the heart of racial preference policies.

Proposition 209 eliminated race, ethnicity, sex and national origin as admissions factors.  Thus, no low-scoring applicant should have a racial advantage over any other applicant.  That's a policy that honors the dignity of the individual -- a value that racial preference proponents subordinate to that of racial identity.

Some proponents of racial preferences argue that the rich diversity of background and intellectual perspective is one of the very reasons why so many students want to study at schools that use racial preferences.  I wonder if these racial preference proponents can explain what intellectual perspective all blacks or Latinos have and how that differs from the intellectual perspective of all whites or Asians.  Then I want to know if that different intellectual perspective allows me to discriminate against all blacks and Latinos because their intellectual perspective does not suit my business.  Then I would like to invite these racial preference proponents to speak at a Klu Klux Klan meeting where their use of race as a proxy for intellectual perspective will be warmly welcomed.

During the Proposition 209 campaign, opponents of Proposition 209 invited David Duke to California State University, Northridge, because they knew that Duke's advocacy of the anti-racial preference principle is a sham; Duke really believes in racial preferences, but for whites.  The tactic helped illustrate that Proposition 209 opponents have more in common with Duke than they care to admit: Both are in favor of subordinating the merit principle to the extent necessary to achieve their desired racial outcomes in academia and the work force.  Their only significant difference is the color of the finished product--white or rainbow.  In contrast, opponents of racial preferences don't care about the color as long as the state chooses the best qualified person from a fairly assembled applicant pool.

Some proponents of racial preferences argue that the preferences given to those who are not white or Asian are remedial.  There are at least two reasons why this argument is false.  The first is that people are primarily individuals, not primarily parts of racial groups, and remedial rights attach to individuals, not racial groups.

Some racial preference proponents argue that color-blind now means blind to the effects of what has been done in the past to people because of their color.  They argue as if today's black job seekers and school applicants are all former slaves who were just freed by the Union Army.  Proposition 209 opponents view each individual as part of a single racial entity that spans time and space.  Thus, individuals are primarily parts of the black entity or the Latino entity or the white entity, etc., not primarily individuals.  Under this view rights attach to the racial entity, not the individual.  Therefore, injustice to individuals comprising this racial entity at one time in history, primarily is seen as injury to the racial entity, not as injury to individuals.

Accordingly, this "injustice" can be redressed by giving a so-called "remedial" preference to other parts of the racial entity who exist at another time in another place.  Presumably this can be done at the expense of innocent individuals who are part of the racial entity that spawned the evil individuals of the past.  If I believed this view to be logical, I also would support racial preferences to redress historical injustice.

To racial preference proponents, when A commits a wrong against B because of B's race, than C deserves a remedy at the expense of D, simply because C shares B's race, when D is an innocent individual who simply shares A's race.  Thus, racial preference proponents endorse race-based group remedies, a concept inconsistent with the Equal Protection Clause's express guarantee of protection for "any person."

Only in race- and sex-discrimination cases have logical remedial principles been abandoned.  Under logical remedial principles that operate in every other area of the law, the black victim of a racial injustice deserves compensation because the victim suffered an injustice, not because the victim was black.  The compensation should come from the wrongdoer, not an innocent party.

Proposition 209 does not prevent specific individual victims of race or sex discrimination from obtaining legitimate compensation, nor does it prohibit legitimate punishment of race and sex discriminators.

The second reason why racial preference proponents' characterization of racial preferences as remedial is false is because nobody can predict the extent of future racial discrimination.  Therefore, prophylactic use of racial preferences cannot be crafted with assurance that they will result in the best qualified applicants being selected.

A necessary element underlying the racial preference proponents' premise of remedial preferences is the notion that the best-qualified applicant should get the job or school admission without regard to race.  Otherwise, on what other basis can an applicant claim that his or her rights were violated by the racially motivated selection of a lesser-qualified person?

An applicant only deserves a remedy for racial discrimination if the applicant otherwise deserved the position, presumably based on ability to do the job.  Therefore, the notion of having a remedy for racial discrimination necessarily implies that absent any racial discrimination, the best-qualified applicants should get the jobs and school admissions.  Presumably, this is the result the racial preferences advocated by their proponents are intended to achieve.

But racial preference proponents fail to show that the racial preferences they endorse will achieve this goal.  For example, if the state's racial preferences result in lesser-qualified preferred applicants getting jobs and school admissions over more-qualified rejected applicants, then the racial preferences have gone too far.  They are no longer serving their prevention and remediation role, but are resulting in the very evil that they were intended to combat: the awarding of positions on the basis of race to lesser-qualified applicants.  They simply have changed the race of the lesser-qualified applicants who obtained their positions and changed the race of the more-qualified applicants who were displaced.

Therefore, for the racial preference proponents' premise to be true, the racial preferences must be so carefully crafted that they will yield the same employment pool and student body that would have resulted if the best qualified applicants were selected without regard to race.  However, it is virtually impossible to predict how many individuals who are not white or Asian will be among the best-qualified applicants and how many of those will be rejected because of racial discrimination in the absence of the preferences the racial preference proponents endorse.

Consider the example of a state employee who was going to make hiring decisions without regard to race and thereby select the best-qualified applicants.  Suppose the employee's legitimate selection of the best-qualified applicants would yield only whites and Asians.  If prophylactic racial preferences in favor of those applicants who are not white or Asian is enforced, then some of these preferred applicants, who are not among the best-qualified, will get jobs at the expense of better-qualified applicants.  In this case the preferred applicants did not receive a prophylactic remedy; rather, they received an undeserved benefit that should have gone to someone more qualified.

Now change the example so that the hiring employee is going to discriminate against applicants who are not white or Asian and some of these applicants are among the best-qualified who deserve to be selected on the basis of individual merit.  Suppose that this would result in the hiring of some whites or Asians who are lesser-qualified at the expense of those applicants who were better-qualified, but were not white or Asian.  In this situation, if the hiring employee was forced to use racial preferences against whites and Asians, it is possible that those individuals who are not white or Asian, who deserve their jobs on the basis of merit, but who would have been rejected on the basis of race or sex, will be hired and everybody hired will be better-qualified than those who were rejected.

But this only will be true if the correct degree of racial preference is applied.  Grant the racial preferences to too many individuals in this example and you have deliberately created the evil you sought to prevent -- hiring of the lesser-qualified over the better-qualified -- only with people of different races in the roles of victims and beneficiaries.

The necessary foundation for a legitimate implementation of the prophylactic remedy -- the ability to precisely predict how many better-qualified applicants who are not white or Asian will be rejected because of race in favor of lesser-qualified whites or Asians -- is absent from the racial preference proponents' argument.  Since they cannot explain how the racial preferences they endorse can be made precise enough to prevent lesser-qualified individuals from getting undeserved benefits at the expense of better-qualified individuals, their "remedial" justification for the preferences evaporates.

This is especially true with regard to the University of California at the time of Proposition 209's passage.  Over the last quarter century before its passage there was no evidence that the university discriminated against any applicants on the basis of race, except for those who are white or Asian.  Therefore, applicants who are not white or Asian are not entitled to any remedy from the University because it has not used their race or sex against them.

Furthermore, there is no basis for imposition of a prophylactic remedy on the University.  There is no evidence that it will use race against individuals who are not white or Asian in the future under any circumstances.  Indeed, such discrimination appears extremely unlikely given the University's history of racial discrimination against many whites and Asians.  Moreover, the objectively verifiable nature of the University's primary admissions criteria -- grades and test scores -- makes such discrimination virtually impossible to hide, further diminishing the need for prophylactic racial preferences.

In the name of providing a prophylactic remedy for applicants who are not white or Asian, racial preference proponents seek to halt implementation of Proposition 209 by a university that never engaged in the conduct for which the remedy is designed, and based on all available evidence, never will do so.

The supporters of racial preferences have no support for their position in the origins of "affirmative action."  President John Kennedy's 1961 Executive Order required that federal contractors "take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color, or national origin."  On August 20, 1963, President John Kennedy was asked during a press conference whether there should be "job quotas by race" to benefit blacks. Kennedy rejected racial quotas and the attempt to "divide ourselves on the basis of race or color."  President Lyndon Johnson's 1965 Executive Order required that federal contractors conduct hiring and promotions "without regard to race."  The "affirmative action" of Kennedy and Johnson's Executive Orders was not designed to hire blacks, but to hire individuals "without regard to race."  Under these orders, the racial composition of the workforce was not mandated.  Rather, there was a mandate to refrain from racial discrimination.  Failure to understand the difference is at the root of our problem today.

To give today's black and Latino individuals (including those who are less qualified than many of their non-black and Latino competitors) racial preference for scarce jobs and school admissions because of historical injustices involving other black and Latino individuals at the hands of evil perpetrators long since dead, to the detriment of today's innocent non-black and Latino individuals, is to treat individuals by the color of their skin, not by the content of their character.  Such treatment was prohibited by the 1964 Civil Rights Act.

Proposition 209 opponents disapprove of a future in which all the subcontractors, state employees and state university students will be white.  In contrast, I don't care about the race of future subcontractors, employees and students.  I disapprove of a future in which all the subcontractor, employee and student applicants will be treated on the basis of their race, with lesser qualified subcontractors, employees and students being accepted at the expense of better qualified applicants.  Proposition 209 opponents care more about achieving a particular color scheme.  I care more about having the best applicant get the job or college admission, whatever his or her race. 

In 1978 the United States Supreme Court ruled against the Regents' use of racial preferences at its Davis, California medical school in Regents of University of California v. Bakke, 438 U.S. 265 (1978).  The decision included an infamous opinion by Justice Lewis F. Powell that many have cited for the proposition that racial preferences are sometimes permissible.  Some proponents of racial preferences argued that UCLA Law's post-Bakke admissions system was consistent with the constitutional standards set out in Powell's opinion.  However, under Powell's misguided opinion race was only permitted as an admissions factor to the extent it was a proxy for underrepresented "outlooks and ideas" that would enhance the education of fellow students.  In the absence of evidence that race is such a proxy, Powell's opinion does not sanction its use.  Powell's Bakke opinion and the post-Bakke racial preference proponents at UCLA School of Law both committed the major error of assuming, without citing any evidence, that racial diversity was a proxy for intellectual and ideological diversity.

Although Justice Powell's opinion is widely cited for its approval of racial diversity as a legitimate goal in school admissions, this view of Justice Powell's opinion is superficial.  Upon closer examination it is clear that the diversity that Justice Powell sanctioned was "not an interest in simple ethnic diversity," but rather, a diversity that promotes an "atmosphere of speculation, experiment and creation."  According to Justice Powell, the value of diversity lies in its ability to foster learning by the students.  Justice Powell's idea of diversity was that a university should be

"accorded the right to select those students who will contribute the most to the robust exchange of ideas."  Justice Powell stated that a student may bring to a professional school "experiences, outlooks, and ideas that enrich the training of its student body . . . ."  He made it clear that value lies in ideological and intellectual diversity, not a simple ethnic diversity.  Justice Powell concluded that in achieving this ideological and intellectual diversity, race and ethnicity may be "simply one element to be weighed fairly against other elements in the selection process."  Justice Powell never stated that all individuals of a particular race or ethnicity think alike.  Nor did he identify any of those particular "outlooks and ideas," to which he generally referred, that an individual is more likely to have by virtue of his or her race.  In fact, Justice Powell failed to cite any evidence linking one's race with one's moral perspective, ideology, or intellectual ability.  Nevertheless, racial preference programs for school admissions are premised on the assumption that there is such a link and that it is significant enough to justify a reduction in academic standards.

The practitioners of racial preferences believe in an unproved stereotype of minority students as having some "outlooks and ideas" that do not occur to significant numbers of white or Asian students.  This unproved stereotype is at the heart of their support for racial diversity as a proxy for Justice Powell's ideological and intellectual diversity.  If Justice Powell endorsed this stereotype by mentioning race as an element that may be "weighed fairly against other elements," he did so without citing any proof.  This point must be stressed: Justice Powell's conclusion that race could be given some consideration is based on an unsupported assumption that race could be used as a proxy for certain under-represented "outlooks and ideas."  Reliance on this unsupported assumption was Justice Powell's major error.

This unsupported assumption was also evident in the statement of Harvard University's undergraduate admissions policy, which Justice Powell appended to his opinion.  However, this was not the only weakness in the Harvard statement.   The statement stated contained the following:

In Harvard College admissions the Committee has not set target-quotas for the number of blacks . . . .  10 or 20 black students [out of 1,100] could not begin to bring to their classmates and to each other the variety of points of view, backgrounds and experiences of blacks in the United States . . . .  Their small numbers might also create a sense of isolation among the black students themselves and thus make it more difficult for them to develop and achieve their potential.

Consequently, when making its decisions, the Committee on Admissions is aware that there is some relationship between numbers and achieving the benefits to be derived from a diverse student body, and between numbers and providing a reasonable environment for those students admitted.  But that awareness does not mean that the Committee sets a minimum number of blacks . . . who are to be admitted.

Harvard's statement that there are no "target-quotas for the number of blacks" and that it does not set "a minimum number of blacks" conflicts with its statement that "20 black students could not begin" to bring Black "points of view" to the student body and that as few as twenty Black students "might also create a sense of isolation among the black students themselves . . . ."  The Harvard statement appears to contradict itself.  Unless Harvard was admitting less Blacks than it believed necessary to bring Black "points of view" to the student body and prevent a "sense of isolation," and despite its awareness that "there is some relationship between numbers and achieving" these benefits, then Harvard clearly had a "target-quota" and "minimum number" for Blacks in excess of twenty.  Quite simply, the Harvard statement is deceptive on this point.

Also, the Harvard statement was indefinite as to the "sense of isolation" which the statement represented "might" be created from having too few Blacks.  In the absence of any evidence for the proposition in Harvard's statement, the proposition appears to be speculative.  Moreover, given the lowering of academic standards for Black applicants, nothing in the statement proves that such a "sense of isolation," if it materialized, would be caused by race.

However, despite Justice Powell's citation to the intellectually muddled Harvard statement, he did conclude that "the assignment of a fixed number of places to a minority group is not a necessary means toward" achieving "educational diversity."  Justice Powell only said that race could be given consideration as one of several factors.  The issue of whether race could be given consideration leads directly to the issue of the extent to which race could be given consideration.  This is addressed by the most ignored part of Justice Powell's opinion; that race may be "weighed fairly against other elements."  The proponents of racial preferences ignore his use of the word "fairly."

Under Justice Powell's opinion, race was only permitted as an admissions factor to the extent it was a proxy for under-represented "outlooks and ideas" that would enhance the education of fellow students.  In the absence of evidence that race is such a proxy, Justice Powell's opinion does not sanction its use.

The weakness of Justice Powell's opinion is that given the true nature of his meaning of "diversity" as being "educational," i.e., intellectual and ideological rather than racial, and the absence of any evidence justifying the use of race as a proxy for certain under-represented "outlooks and ideas," a "fair" weighing of the racial element should result in it being given no weight, especially when compared with other elements like a significantly higher level of demonstrated intellectual achievement as represented by grades and test scores, and other nonracial factors that are important in making better students and professionals.

Also, racial preference proponents ignore the consequences of a policy that virtually ensures a significant intellectual mismatch (as measured by GPA and LSAT score) between significant numbers of white and Asian law students and significant numbers of Black, Latino, and Native American law students.  For example, under such a policy, white and Asian students have a significantly higher percentage of their population composed of individuals who have met the highest academic standards as compared with the percentage of the Black, Latino, and Native American student populations that have met the same standards.  This is not the result of any racial difference.  Rather, it results from a policy that generally fails to admit white and Asian applicants who do not achieve the highest academic standards; yet does admit a significant percentage of Black, Latino, and Native American applicants who do not achieve these standards.

Therefore, the policy virtually ensures that when a white or Asian UCLA Law student meets a Black, Latino, or Native American student, the white or Asian student is meeting an individual who has a lesser degree of academic achievement (as measured by GPA and LSAT score); while the Black, Latino, or Native American student is meeting an individual who has a higher degree of academic achievement (as similarly measured).  If a racial bigot wanted to teach students that whites and Asians were generally intellectually superior to Blacks, Latinos, and Native Americans, could there be a better way to do it?  I suspect the Klu Klux Klan would be proud to have devised such a plan.

Racial preference proponents base their call for a "critical mass" of minority students largely on the "sense of isolation" supposedly felt by minority students in the early days of racial preference programs.  Racial preference proponents assume that this "sense of isolation" was caused by racial differences and not by the intellectual mismatch between the students admitted under the racial preference program as compared with the other students, and that the "sense of isolation" also would have been felt by white students who had been so mismatched.

Racial preference proponents neglect the effects of an admissions policy that allows for individuals to be identified by appearance or surname as those who probably owe their admission to the lowering of intellectual standards.  They don't seem to care about whether such students might feel stigmatized and whether any such stigma might contribute to a "sense of isolation."  They don't seem to care about whether an individual who would have been admitted without the standards being lowered, but who is easily identified as being eligible for a racial admission preference, may be unfairly stigmatized as somebody who would not have been admitted without the racial preference.

Prior to Proposition 209 UCLA Law was admitting academically less qualified Black, Latino and Native American applicants, to the exclusion of academically more qualified white and Asian applicants, in order to expose white and Asian students to "outlooks and ideas" to which they would not otherwise be exposed, although neither Justice Powell or UCLA Law specified any of these particular "outlooks and ideas."

Additionally, this was done in sufficient numbers to keep the Black, Latino and Native American students from feeling "isolated" when that isolation appears more likely to be caused by the deliberately engineered intellectual mismatch with their classmates rather than by any racial differences.

Professor Richard H. Sander of UCLA Law has reported on the effects of racial preference policies in law schools across the nation since 1996. He has found that the credentials of  average Black and Latino law school applicants are far below those of most white and Asian applicants, and relative improvements have been trivial since the early 1990s.  He has found that law schools continue to use extremely large racial preferences for Blacks, and generally grant sizeable preferences for Latinos as well. He argues that because those with lower grades and test scores generally perform at a lower level than those admitted with higher grades and test scores, because of the racial preferences, racial gaps in graduation and bar passage rates are significant.

The NAACP's effort to eliminate Proposition 209 is not the answer. The answer is to raise the achievement level of those in the Black and Latino applicant pools and abandon the principle that individuals are primarily members of racial groups, rather than individuals.

Allan J. Favish is an attorney in Los Angeles.  His website is allanfavish.com.  He has co-authored with James Fernald a new book about what might happen if the government ran Disneyland entitled Fireworks! If the Government Ran the Fairest Kingdom of Them All (A Very Unauthorized Fantasy).

The Supreme Court will revisit affirmative action, worrying many advocates of officially sponsored racial preferences.  But proponents of racial preferences are actively seeking to restore them in the state of California.

According to the Los Angeles Times, the Los Angeles chapter of the National Association for the Advancement of Colored People is urging people to support racial preferences.  The NAACP wants people to file friend of the court briefs in a case before the United States Court of Appeals for the Ninth Circuit that is challenging California's racial preference ban.  The ban began as the California Civil Rights Initiative and later became Proposition 209 when it was placed on the ballot and approved in 1996.  Proposition 209 amended California's Constitution, adding that the "state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting."  The Times reports that Proposition 209's "opponents cite a July opinion by the 6th Circuit Court of Appeals, which overturned a similar law in Michigan, as new ammunition for their cause."

The Sixth Circuit case is Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality by Any Means Necessary (BAMN), et al. v. Regents of the University of Michigan Board of Trustees of Michigan State University, et al., 652 F.3d 607 (6th Cir. 2011).  The ruling is based on the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, which states that no state shall "deny to any person . . . the equal protection of the laws."  In Coalition, two out of three judges, Ransey Guy Cole, Jr., and Martha Craig Daughtrey, both nominated by President Bill Clinton, ruled that the 14th Amendment means that states cannot prohibit the granting of racial preferences to individuals who are members of racial minority groups.  These two judges reached this conclusion without citing anything in the legislative history of the Fourteenth Amendment that would contradict its plain text.

Instead, they relied upon language from two prior opinions of the United States Supreme Court. However, these opinions overturned laws that had the effect of overturning and making it more difficult to enact anti-racial discrimination legislation.  Therefore, their reliance on the prior opinions was misplaced because Proposition 209 embodies the principle of anti-racial discrimination.

I know what the proponents of racial preferences want.  A couple of years before Proposition 209 was passed, I sued the Regents of the University of California and obtained raw admissions data for the 1993 entering class at UCLA School of Law.  The documents I obtained revealed that in 1993, over 5,200 applicants were competing for 350 spaces in the fall entering class at UCLA Law.  Upon receiving UCLA Law's admissions decisions, at least 52 of these applicants may have been very surprised.

Thirty of these 52 were rejected despite their undergraduate GPA's of 3.5 and higher, and Law School Admission Test scores above the 92nd percentile.  Three of these 30 identified themselves as Asian; the other 27 identified themselves as white or declined to state their race (W/DS).

In contrast, 22 of these 52 were offered admission although 13 who identified themselves as black had GPA's of less than 3 and LSAT scores below the 80th percentile; six who identified themselves as Latino had GPA's of less than 2.94 and LSAT scores below the 71st percentile; and three who identified themselves as Native American Indian had GPA's of less than 3 and LSAT scores below the 71st percentile.

No offer of admission was made to any W/DS applicant having a GPA less than 3 and an LSAT score below the 80th percentile.  This was despite the fact that 10 of the rejected W/DS applicants in this lower range had GPA's equal to or above 2.9 and LSAT scores equal to or above the 75th percentile -- a feat matched by only one of the 22 black, Latino and Native American applicants discussed above who were offered admission.

UCLA Law did more than simply reject 30 highly academically qualified W/DS and Asian applicants while offering admission to 22 blacks, Latinos and Native Americans with far lower academic qualifications.  It also treated academically average individuals in a manner that suggests that race was a large factor in the admissions decision.

Among applicants with GPA's ranging from below 3.3 down to 2, and LSAT percentile scores ranging from below the 84th down to the 50th, 42 of 122 blacks, 32 of 155 Latinos and three of 18 Native Americans were offered admission, while none of the 201 Asians and only one of the 453 W/DS applicants in this range was offered admission.  This was despite the fact that among those in the upper level of this range, whose GPA's ranged from below 3.3 down to only 3, and whose LSAT percentile scores ranged from below the 84th down to only the 75th, there were 127 W/DS and 35 Asian applicants.

It might be argued that race was not a significant factor in the admission offers to these 77 black, Latino and Native American applicants with average academic qualifications because they may have had other evidence of personal qualities warranting their admission.  But that argument implies that only one of 654 W/DS and Asian applicants in this range had such evidence -- a dubious proposition.

There were 2,833 W/DS applicants.  The Asian applicants totaled 1,051, while 487 were black, 563 were Latino and 73 were Native American.  The rest were identified as Other (Non-White).

In summary, the documents showed that some W/DS and Asian applicants with high academic qualifications were rejected while some blacks, Latinos and Native Americans with far less academic qualifications were offered admission.  In contrast, W/DS and Asian applicants in this same lower range were not offered admission.  The documents also showed that average academic qualifications still allowed for the admission of blacks, Latinos and Native Americans, but virtually eliminated the possibility of admission for W/DS and Asian applicants.

Some black, Latino and Native American UCLA law students may have had far better legal skills and may have made far better lawyers than some white and Asian students.  These minority students might have been offered admission even if their race was not a factor.  However, thanks to UCLA Law's admissions policy, such black, Latino and Native American students now have suspect credentials.  UCLA Law's policy has succeeded in stigmatizing, to a degree the Klu Klux Klan only could dream about, those black, Latino and Native Americans who could have gained admission without a racial preference. 

Are there any black, Latino or Native American UCLA law students who would like to have won their admission strictly on the basis of their individual abilities, without regard to their race?  Are there any who resent being stigmatized by UCLA as individuals who were not good enough for admission without consideration of their race and the race of their competitors?  Are there any who wish to be judged on the content of their character rather than on the color of their skin?

The intent of those who enacted the Civil Rights Act of 1964 was to encourage hiring and promotion of the best qualified individuals without regard to race.  They shared Martin Luther King's belief that a person should be judged by the content of one's character, not by the color of one's skin.

Some proponents of racial preferences argue that people get better representation from lawyers of their own race.  Under this view, a white employer could refuse to hire minority lawyers on the basis that because of race, the minority lawyers cannot represent the firm's white clients as well as white lawyers.  Those of us against racial preferences are in favor of prosecuting such an employer.

Moreover, black, Latino and Native American attorneys are going to work on cases that have nothing to do with race or minority clients.  Whatever special abilities they may have for handling race-related cases will not help them when race is not material to the case.  Assuming, as all law schools do, that undergraduate grade-point averages and LSAT scores are important indicators of intellectual ability, if you know nothing else about two lawyers competing to represent you in a case where race is immaterial, except that one was probably admitted under a program where intellectual standards were reduced and the other was admitted under more rigorous standards, whom do you prefer to represent you?

Some proponents of racial preferences fear under-service of the minority community if too few minority lawyers were produced.  As long as personal injury, civil rights and other cases can be taken on contingency and the cases are meritorious, there will not be a shortage of white lawyers to take the cases.  Additionally, every black, Latino and Native American client who can pay an hourly fee for legal services will find a lawyer, even if all the lawyers are white.  The operative color for most lawyers, of all races, is not black, brown, red or yellow -- it is green. For those without money, charitable legal services are available for people of all races.

Some proponents of racial preferences argue that ideas about fear and dislike of the police would not have come about if it were not for the minority attorneys, law students and advocates who voiced the experiences of their racial communities.  Long before there were racial preferences for minorities, at a time when there were racial preferences for whites, many white attorneys and law students fought against racially bigoted police practices.  None of these whites had to be a direct victim of these policies in order to recognize them as evil and understand their effect on the direct victims.

Some proponents of racial preferences argue that the quality of an applicant can be measured by factors additional to the GPA and LSAT score.  Some cite to ethical behavior as an example.  Additional factors like perseverance, moral courage, intellectual creativity unmeasured by GPA and LSAT should all be utilized as long as they are given appropriate relative weight.  However, the documents I obtained proved that UCLA Law tended to find these additional factors in relatively low-scoring blacks, Latinos and Native Americans, not in similarly scoring whites and Asians.  The argument that race is only one of several additional factors rings hollow when some individuals, because of their race, don't get the benefit of being evaluated by those additional factors.

Before Proposition 209 proponents of racial preferences were willing to accept the negative effects of their policies in order to perpetuate their racial utopia.  The nationwide attrition rate (for academic reasons) in ABA accredited law schools was over three times higher for blacks and Hispanics than it was for whites.  Also, the July 1994 California bar passage rates for first-time takers were significantly lower for blacks and Hispanics.  I don't believe this had anything to do with race.  Whites and Asians would perform just as poorly if the same percentage of their ranks were filled with B and C students, rather than A students.

Some racial preference proponents say they will accept poverty preferences.  But I am unaware of any data showing that racial preferences must be used in order to admit a greater proportion of poor applicants.  Nevertheless, my position that applicants best qualified to study law should be admitted over less qualified applicants implicitly rules out a poverty preference.  But it does not rule out consideration of an applicant's poverty to the extent that it makes the applicant's grades and test scores unreflective of the applicant's true intellectual ability.

Proponents of racial preferences see no problem with a prestigious university that offers admission to 3,000 applicants, of whom 300 are black and other racial minorities with at least good grades and test scores, if not in the excellent range of most other admitted applicants.  But if you know nothing else about two university students, except that one was probably admitted under a program where intellectual standards were reduced and the student received a preference for being the child of an alumnus, and the other was admitted under more rigorous intellectual standards without receiving any nonmerit-based preference, what are you going to think about these two students?

Is the answer any different when the preference is based on race rather than an alumni relationship?  A nonmerit-based preference program based on an individual's physical appearance or surname is no less a badge of inferiority than the one condemned in Brown v. Board of Education.  Thanks to racial preference programs, any of the 300 students admitted to the prestigious university described above who attend the university, including those who deserved admission without the racial preference, will wear that badge.

Some proponents of racial preferences argue that despite their low grades and test scores, they attended top-ranked schools because of racial preferences and did very well.  There is no dispute that some applicants, of all races, will perform at a level beyond what the evidence available at the time of their admission indicates.  The issue is whether low-scoring white and Asian applicants should be given a lessor opportunity than black and Latino applicants simply because of their race.

These same proponents of racial preferences are silent about the fact that simply because of race, low-scoring white and Asian applicants were not given the same opportunity as them.  Their silence about the unfairness done to the low-scoring white and Asian applicants indicates their willingness to treat people primarily as members of racial groups, rather than as individuals.  This diminution of individual dignity is at the heart of racial preference policies.

Proposition 209 eliminated race, ethnicity, sex and national origin as admissions factors.  Thus, no low-scoring applicant should have a racial advantage over any other applicant.  That's a policy that honors the dignity of the individual -- a value that racial preference proponents subordinate to that of racial identity.

Some proponents of racial preferences argue that the rich diversity of background and intellectual perspective is one of the very reasons why so many students want to study at schools that use racial preferences.  I wonder if these racial preference proponents can explain what intellectual perspective all blacks or Latinos have and how that differs from the intellectual perspective of all whites or Asians.  Then I want to know if that different intellectual perspective allows me to discriminate against all blacks and Latinos because their intellectual perspective does not suit my business.  Then I would like to invite these racial preference proponents to speak at a Klu Klux Klan meeting where their use of race as a proxy for intellectual perspective will be warmly welcomed.

During the Proposition 209 campaign, opponents of Proposition 209 invited David Duke to California State University, Northridge, because they knew that Duke's advocacy of the anti-racial preference principle is a sham; Duke really believes in racial preferences, but for whites.  The tactic helped illustrate that Proposition 209 opponents have more in common with Duke than they care to admit: Both are in favor of subordinating the merit principle to the extent necessary to achieve their desired racial outcomes in academia and the work force.  Their only significant difference is the color of the finished product--white or rainbow.  In contrast, opponents of racial preferences don't care about the color as long as the state chooses the best qualified person from a fairly assembled applicant pool.

Some proponents of racial preferences argue that the preferences given to those who are not white or Asian are remedial.  There are at least two reasons why this argument is false.  The first is that people are primarily individuals, not primarily parts of racial groups, and remedial rights attach to individuals, not racial groups.

Some racial preference proponents argue that color-blind now means blind to the effects of what has been done in the past to people because of their color.  They argue as if today's black job seekers and school applicants are all former slaves who were just freed by the Union Army.  Proposition 209 opponents view each individual as part of a single racial entity that spans time and space.  Thus, individuals are primarily parts of the black entity or the Latino entity or the white entity, etc., not primarily individuals.  Under this view rights attach to the racial entity, not the individual.  Therefore, injustice to individuals comprising this racial entity at one time in history, primarily is seen as injury to the racial entity, not as injury to individuals.

Accordingly, this "injustice" can be redressed by giving a so-called "remedial" preference to other parts of the racial entity who exist at another time in another place.  Presumably this can be done at the expense of innocent individuals who are part of the racial entity that spawned the evil individuals of the past.  If I believed this view to be logical, I also would support racial preferences to redress historical injustice.

To racial preference proponents, when A commits a wrong against B because of B's race, than C deserves a remedy at the expense of D, simply because C shares B's race, when D is an innocent individual who simply shares A's race.  Thus, racial preference proponents endorse race-based group remedies, a concept inconsistent with the Equal Protection Clause's express guarantee of protection for "any person."

Only in race- and sex-discrimination cases have logical remedial principles been abandoned.  Under logical remedial principles that operate in every other area of the law, the black victim of a racial injustice deserves compensation because the victim suffered an injustice, not because the victim was black.  The compensation should come from the wrongdoer, not an innocent party.

Proposition 209 does not prevent specific individual victims of race or sex discrimination from obtaining legitimate compensation, nor does it prohibit legitimate punishment of race and sex discriminators.

The second reason why racial preference proponents' characterization of racial preferences as remedial is false is because nobody can predict the extent of future racial discrimination.  Therefore, prophylactic use of racial preferences cannot be crafted with assurance that they will result in the best qualified applicants being selected.

A necessary element underlying the racial preference proponents' premise of remedial preferences is the notion that the best-qualified applicant should get the job or school admission without regard to race.  Otherwise, on what other basis can an applicant claim that his or her rights were violated by the racially motivated selection of a lesser-qualified person?

An applicant only deserves a remedy for racial discrimination if the applicant otherwise deserved the position, presumably based on ability to do the job.  Therefore, the notion of having a remedy for racial discrimination necessarily implies that absent any racial discrimination, the best-qualified applicants should get the jobs and school admissions.  Presumably, this is the result the racial preferences advocated by their proponents are intended to achieve.

But racial preference proponents fail to show that the racial preferences they endorse will achieve this goal.  For example, if the state's racial preferences result in lesser-qualified preferred applicants getting jobs and school admissions over more-qualified rejected applicants, then the racial preferences have gone too far.  They are no longer serving their prevention and remediation role, but are resulting in the very evil that they were intended to combat: the awarding of positions on the basis of race to lesser-qualified applicants.  They simply have changed the race of the lesser-qualified applicants who obtained their positions and changed the race of the more-qualified applicants who were displaced.

Therefore, for the racial preference proponents' premise to be true, the racial preferences must be so carefully crafted that they will yield the same employment pool and student body that would have resulted if the best qualified applicants were selected without regard to race.  However, it is virtually impossible to predict how many individuals who are not white or Asian will be among the best-qualified applicants and how many of those will be rejected because of racial discrimination in the absence of the preferences the racial preference proponents endorse.

Consider the example of a state employee who was going to make hiring decisions without regard to race and thereby select the best-qualified applicants.  Suppose the employee's legitimate selection of the best-qualified applicants would yield only whites and Asians.  If prophylactic racial preferences in favor of those applicants who are not white or Asian is enforced, then some of these preferred applicants, who are not among the best-qualified, will get jobs at the expense of better-qualified applicants.  In this case the preferred applicants did not receive a prophylactic remedy; rather, they received an undeserved benefit that should have gone to someone more qualified.

Now change the example so that the hiring employee is going to discriminate against applicants who are not white or Asian and some of these applicants are among the best-qualified who deserve to be selected on the basis of individual merit.  Suppose that this would result in the hiring of some whites or Asians who are lesser-qualified at the expense of those applicants who were better-qualified, but were not white or Asian.  In this situation, if the hiring employee was forced to use racial preferences against whites and Asians, it is possible that those individuals who are not white or Asian, who deserve their jobs on the basis of merit, but who would have been rejected on the basis of race or sex, will be hired and everybody hired will be better-qualified than those who were rejected.

But this only will be true if the correct degree of racial preference is applied.  Grant the racial preferences to too many individuals in this example and you have deliberately created the evil you sought to prevent -- hiring of the lesser-qualified over the better-qualified -- only with people of different races in the roles of victims and beneficiaries.

The necessary foundation for a legitimate implementation of the prophylactic remedy -- the ability to precisely predict how many better-qualified applicants who are not white or Asian will be rejected because of race in favor of lesser-qualified whites or Asians -- is absent from the racial preference proponents' argument.  Since they cannot explain how the racial preferences they endorse can be made precise enough to prevent lesser-qualified individuals from getting undeserved benefits at the expense of better-qualified individuals, their "remedial" justification for the preferences evaporates.

This is especially true with regard to the University of California at the time of Proposition 209's passage.  Over the last quarter century before its passage there was no evidence that the university discriminated against any applicants on the basis of race, except for those who are white or Asian.  Therefore, applicants who are not white or Asian are not entitled to any remedy from the University because it has not used their race or sex against them.

Furthermore, there is no basis for imposition of a prophylactic remedy on the University.  There is no evidence that it will use race against individuals who are not white or Asian in the future under any circumstances.  Indeed, such discrimination appears extremely unlikely given the University's history of racial discrimination against many whites and Asians.  Moreover, the objectively verifiable nature of the University's primary admissions criteria -- grades and test scores -- makes such discrimination virtually impossible to hide, further diminishing the need for prophylactic racial preferences.

In the name of providing a prophylactic remedy for applicants who are not white or Asian, racial preference proponents seek to halt implementation of Proposition 209 by a university that never engaged in the conduct for which the remedy is designed, and based on all available evidence, never will do so.

The supporters of racial preferences have no support for their position in the origins of "affirmative action."  President John Kennedy's 1961 Executive Order required that federal contractors "take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color, or national origin."  On August 20, 1963, President John Kennedy was asked during a press conference whether there should be "job quotas by race" to benefit blacks. Kennedy rejected racial quotas and the attempt to "divide ourselves on the basis of race or color."  President Lyndon Johnson's 1965 Executive Order required that federal contractors conduct hiring and promotions "without regard to race."  The "affirmative action" of Kennedy and Johnson's Executive Orders was not designed to hire blacks, but to hire individuals "without regard to race."  Under these orders, the racial composition of the workforce was not mandated.  Rather, there was a mandate to refrain from racial discrimination.  Failure to understand the difference is at the root of our problem today.

To give today's black and Latino individuals (including those who are less qualified than many of their non-black and Latino competitors) racial preference for scarce jobs and school admissions because of historical injustices involving other black and Latino individuals at the hands of evil perpetrators long since dead, to the detriment of today's innocent non-black and Latino individuals, is to treat individuals by the color of their skin, not by the content of their character.  Such treatment was prohibited by the 1964 Civil Rights Act.

Proposition 209 opponents disapprove of a future in which all the subcontractors, state employees and state university students will be white.  In contrast, I don't care about the race of future subcontractors, employees and students.  I disapprove of a future in which all the subcontractor, employee and student applicants will be treated on the basis of their race, with lesser qualified subcontractors, employees and students being accepted at the expense of better qualified applicants.  Proposition 209 opponents care more about achieving a particular color scheme.  I care more about having the best applicant get the job or college admission, whatever his or her race. 

In 1978 the United States Supreme Court ruled against the Regents' use of racial preferences at its Davis, California medical school in Regents of University of California v. Bakke, 438 U.S. 265 (1978).  The decision included an infamous opinion by Justice Lewis F. Powell that many have cited for the proposition that racial preferences are sometimes permissible.  Some proponents of racial preferences argued that UCLA Law's post-Bakke admissions system was consistent with the constitutional standards set out in Powell's opinion.  However, under Powell's misguided opinion race was only permitted as an admissions factor to the extent it was a proxy for underrepresented "outlooks and ideas" that would enhance the education of fellow students.  In the absence of evidence that race is such a proxy, Powell's opinion does not sanction its use.  Powell's Bakke opinion and the post-Bakke racial preference proponents at UCLA School of Law both committed the major error of assuming, without citing any evidence, that racial diversity was a proxy for intellectual and ideological diversity.

Although Justice Powell's opinion is widely cited for its approval of racial diversity as a legitimate goal in school admissions, this view of Justice Powell's opinion is superficial.  Upon closer examination it is clear that the diversity that Justice Powell sanctioned was "not an interest in simple ethnic diversity," but rather, a diversity that promotes an "atmosphere of speculation, experiment and creation."  According to Justice Powell, the value of diversity lies in its ability to foster learning by the students.  Justice Powell's idea of diversity was that a university should be

"accorded the right to select those students who will contribute the most to the robust exchange of ideas."  Justice Powell stated that a student may bring to a professional school "experiences, outlooks, and ideas that enrich the training of its student body . . . ."  He made it clear that value lies in ideological and intellectual diversity, not a simple ethnic diversity.  Justice Powell concluded that in achieving this ideological and intellectual diversity, race and ethnicity may be "simply one element to be weighed fairly against other elements in the selection process."  Justice Powell never stated that all individuals of a particular race or ethnicity think alike.  Nor did he identify any of those particular "outlooks and ideas," to which he generally referred, that an individual is more likely to have by virtue of his or her race.  In fact, Justice Powell failed to cite any evidence linking one's race with one's moral perspective, ideology, or intellectual ability.  Nevertheless, racial preference programs for school admissions are premised on the assumption that there is such a link and that it is significant enough to justify a reduction in academic standards.

The practitioners of racial preferences believe in an unproved stereotype of minority students as having some "outlooks and ideas" that do not occur to significant numbers of white or Asian students.  This unproved stereotype is at the heart of their support for racial diversity as a proxy for Justice Powell's ideological and intellectual diversity.  If Justice Powell endorsed this stereotype by mentioning race as an element that may be "weighed fairly against other elements," he did so without citing any proof.  This point must be stressed: Justice Powell's conclusion that race could be given some consideration is based on an unsupported assumption that race could be used as a proxy for certain under-represented "outlooks and ideas."  Reliance on this unsupported assumption was Justice Powell's major error.

This unsupported assumption was also evident in the statement of Harvard University's undergraduate admissions policy, which Justice Powell appended to his opinion.  However, this was not the only weakness in the Harvard statement.   The statement stated contained the following:

In Harvard College admissions the Committee has not set target-quotas for the number of blacks . . . .  10 or 20 black students [out of 1,100] could not begin to bring to their classmates and to each other the variety of points of view, backgrounds and experiences of blacks in the United States . . . .  Their small numbers might also create a sense of isolation among the black students themselves and thus make it more difficult for them to develop and achieve their potential.

Consequently, when making its decisions, the Committee on Admissions is aware that there is some relationship between numbers and achieving the benefits to be derived from a diverse student body, and between numbers and providing a reasonable environment for those students admitted.  But that awareness does not mean that the Committee sets a minimum number of blacks . . . who are to be admitted.

Harvard's statement that there are no "target-quotas for the number of blacks" and that it does not set "a minimum number of blacks" conflicts with its statement that "20 black students could not begin" to bring Black "points of view" to the student body and that as few as twenty Black students "might also create a sense of isolation among the black students themselves . . . ."  The Harvard statement appears to contradict itself.  Unless Harvard was admitting less Blacks than it believed necessary to bring Black "points of view" to the student body and prevent a "sense of isolation," and despite its awareness that "there is some relationship between numbers and achieving" these benefits, then Harvard clearly had a "target-quota" and "minimum number" for Blacks in excess of twenty.  Quite simply, the Harvard statement is deceptive on this point.

Also, the Harvard statement was indefinite as to the "sense of isolation" which the statement represented "might" be created from having too few Blacks.  In the absence of any evidence for the proposition in Harvard's statement, the proposition appears to be speculative.  Moreover, given the lowering of academic standards for Black applicants, nothing in the statement proves that such a "sense of isolation," if it materialized, would be caused by race.

However, despite Justice Powell's citation to the intellectually muddled Harvard statement, he did conclude that "the assignment of a fixed number of places to a minority group is not a necessary means toward" achieving "educational diversity."  Justice Powell only said that race could be given consideration as one of several factors.  The issue of whether race could be given consideration leads directly to the issue of the extent to which race could be given consideration.  This is addressed by the most ignored part of Justice Powell's opinion; that race may be "weighed fairly against other elements."  The proponents of racial preferences ignore his use of the word "fairly."

Under Justice Powell's opinion, race was only permitted as an admissions factor to the extent it was a proxy for under-represented "outlooks and ideas" that would enhance the education of fellow students.  In the absence of evidence that race is such a proxy, Justice Powell's opinion does not sanction its use.

The weakness of Justice Powell's opinion is that given the true nature of his meaning of "diversity" as being "educational," i.e., intellectual and ideological rather than racial, and the absence of any evidence justifying the use of race as a proxy for certain under-represented "outlooks and ideas," a "fair" weighing of the racial element should result in it being given no weight, especially when compared with other elements like a significantly higher level of demonstrated intellectual achievement as represented by grades and test scores, and other nonracial factors that are important in making better students and professionals.

Also, racial preference proponents ignore the consequences of a policy that virtually ensures a significant intellectual mismatch (as measured by GPA and LSAT score) between significant numbers of white and Asian law students and significant numbers of Black, Latino, and Native American law students.  For example, under such a policy, white and Asian students have a significantly higher percentage of their population composed of individuals who have met the highest academic standards as compared with the percentage of the Black, Latino, and Native American student populations that have met the same standards.  This is not the result of any racial difference.  Rather, it results from a policy that generally fails to admit white and Asian applicants who do not achieve the highest academic standards; yet does admit a significant percentage of Black, Latino, and Native American applicants who do not achieve these standards.

Therefore, the policy virtually ensures that when a white or Asian UCLA Law student meets a Black, Latino, or Native American student, the white or Asian student is meeting an individual who has a lesser degree of academic achievement (as measured by GPA and LSAT score); while the Black, Latino, or Native American student is meeting an individual who has a higher degree of academic achievement (as similarly measured).  If a racial bigot wanted to teach students that whites and Asians were generally intellectually superior to Blacks, Latinos, and Native Americans, could there be a better way to do it?  I suspect the Klu Klux Klan would be proud to have devised such a plan.

Racial preference proponents base their call for a "critical mass" of minority students largely on the "sense of isolation" supposedly felt by minority students in the early days of racial preference programs.  Racial preference proponents assume that this "sense of isolation" was caused by racial differences and not by the intellectual mismatch between the students admitted under the racial preference program as compared with the other students, and that the "sense of isolation" also would have been felt by white students who had been so mismatched.

Racial preference proponents neglect the effects of an admissions policy that allows for individuals to be identified by appearance or surname as those who probably owe their admission to the lowering of intellectual standards.  They don't seem to care about whether such students might feel stigmatized and whether any such stigma might contribute to a "sense of isolation."  They don't seem to care about whether an individual who would have been admitted without the standards being lowered, but who is easily identified as being eligible for a racial admission preference, may be unfairly stigmatized as somebody who would not have been admitted without the racial preference.

Prior to Proposition 209 UCLA Law was admitting academically less qualified Black, Latino and Native American applicants, to the exclusion of academically more qualified white and Asian applicants, in order to expose white and Asian students to "outlooks and ideas" to which they would not otherwise be exposed, although neither Justice Powell or UCLA Law specified any of these particular "outlooks and ideas."

Additionally, this was done in sufficient numbers to keep the Black, Latino and Native American students from feeling "isolated" when that isolation appears more likely to be caused by the deliberately engineered intellectual mismatch with their classmates rather than by any racial differences.

Professor Richard H. Sander of UCLA Law has reported on the effects of racial preference policies in law schools across the nation since 1996. He has found that the credentials of  average Black and Latino law school applicants are far below those of most white and Asian applicants, and relative improvements have been trivial since the early 1990s.  He has found that law schools continue to use extremely large racial preferences for Blacks, and generally grant sizeable preferences for Latinos as well. He argues that because those with lower grades and test scores generally perform at a lower level than those admitted with higher grades and test scores, because of the racial preferences, racial gaps in graduation and bar passage rates are significant.

The NAACP's effort to eliminate Proposition 209 is not the answer. The answer is to raise the achievement level of those in the Black and Latino applicant pools and abandon the principle that individuals are primarily members of racial groups, rather than individuals.

Allan J. Favish is an attorney in Los Angeles.  His website is allanfavish.com.  He has co-authored with James Fernald a new book about what might happen if the government ran Disneyland entitled Fireworks! If the Government Ran the Fairest Kingdom of Them All (A Very Unauthorized Fantasy).

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