President Clinton has lately been busy, busy, busy bringing us all together for a national conversation on race. And he keeps piling up the words — so that the rest of us might climb his transcripts to a heaven of inter-ethnic healing. Deep inside this Tower of Bubba, of course, the president’s lawyers are making practical decisions about race-conscious federal law. Real-world grubbiness like this tends to spoil his intended effect, so Clinton tries to hide it from view. But he is not always successful.
In mid-July, he gave a speech to the National Association of Black Journalists. At the end, he was asked about recent legal setbacks to affirmative action. Last year, a federal appeals court ruled that “diversity” admissions at the University of Texas law school were unconstitutional. This year, obeying orders from the University of California board of regents — and Proposition 209, the anti-preference amendment to the state constitution – – three UC law schools abandoned race-conscious admissions. Minority enrollment at the Texas and California campuses will sharply decline as a result. What, the questioner wanted to know, was the administration going to do about this?
Clinton said he was “a little stumped” by this “shocking” development. But before he changed the subject, he let slip the truth: His people would ” continue to use federal law to the maximum extent we can to promote an integrated educational environment.” He had lawyers “looking at it and working on it.”
Indeed, he did. Four months ago, Norma Cantu, civil rights chief at the Education Department, wrote Texas officials a letter about Hopwood v. Texas, the appeals court’s law-school ruling. She told them that Hopwood applied only narrowly and that every Texas college and university still had a “clear legal obligation” under the 1964 Civil Rights Act to remedy “the effects of past discrimination.” If they didn’t fulfill that obligation, she suggested — if they obeyed the appeals court and gave up race preferences — then the Education Department might withhold their federal funding.
A novel theory, to be sure. And much too candid an expression of Clintonian design. So acting Justice Department solicitor general Walter Dellinger wrote an exquisitely delicate memorandum to the Education Department’s top lawyer, Judith Winston. Um, he noted, “It appears that some confusion has arisen about the position of the United States” concerning whether Norma Cantu or the courts get to decide what the Constitution says. The right answer is the courts, Dellinger acknowledged, however grievously mistaken they might be. Cantu should back down.
Which she then appeared to do. But it was “not a complete reversal,” her spokesman argued. “It’s merely a clarification, and I think it doesn’t dramatically change our position.” It wasn’t clear what this meant.
Now it is clear. On March 19, Norma Cantu’s former outfit, the Mexican American Legal Defense and Educational Fund (MALDEF), filed a civil rights complaint with her office. Because the University of California no longer grants race preferences to its law-school applicants, admissions decisions turn more than ever on objective measurements of academic performance. Non- white students have generally lower test scores and grades, so many of them will be eliminated from consideration at selective law schools like Berkeley’s Boalt Hall. This new selection process produces, in affirmative- action jargon, a “disparate impact.” So MALDEF says it is illegal and must be halted. And that Norma Cantu should bludgeon the University of California into submission.
On July 11, Cantu agreed to look into it. She began a civil rights investigation of alleged “discrimination” by the California law-school deans. This time, Walter Dellinger did not restrain her.
Trickery propels this investigation. MALDEF must argue that the standardized law-school entrance exam, the LSAT, is indefensible pseudo- science. The test “does not predict success” as it purports to, the organization says. Many students with high LSAT scores get bad grades once their legal studies begin. In fact, this proves nothing about the test’s validity. The MALDEF complaint is based on a basic statistical misunderstanding — what psychometricians call the problem of “restricted range.” Once in law school, higher-scoring students compete among themselves and are graded on a scale. That some of them get Cs does not make their LSAT scores a fluke.
MALDEF must also argue that a scheme by which the Berkeley law school weights its applicants’ undergraduate grades is an effort to “penalize students for attending schools which have high minority enrollments.” Hardly. The school’s admissions office sensibly believes that straight A’s from McDonald’s Hamburger College should count for less than straight As from Harvard. So it adjusts applicants’ transcript scores up and down, by formula, to make them even. It’s not just black colleges that suffer in the calculation. Certain schools with few minority students, like the University of Utah and Pepperdine, get downgraded, too.
MALDEF’s lawyers pretend not to be claiming that the 1964 Civil Rights Act requires affirmative action. There are other ways, MALDEF helpfully suggests, that UC law schools can mitigate the discriminatory effect of their selection standards. They might consider “the individual racial and gender- based experiences of applicants.” Or they might consider student “adversity faced on the basis of race, ethnicity, or gender.” Or they might consider ” individual experience of racism.” Stuff like that. Except that all such considerations are now illegal under the California constitution.
Race preferences are illegal in California, that is, unless Washington makes them a precondition for receiving federal money. It’s a little-noticed provision of Propositon 209, one designed to protect billions of dollars in state aid.
Nifty, huh? According to MALDEF, grades and test scores are academically ” unnecessary” criteria that hurt minority law-school applicants. So schools that use such criteria cannot receive federal funds. You’re allowed to give up race preferences, in other words. But if you do, federal law will demand that you immediately restore them.
An altogether bizarre idea. Most observers are aghast. Michael Rappaport, for example, is dean of admissions at UCLA’s law school and a proponent of affirmative action. He says it sounds to him as though MALDEF is insisting that “an academic institution can’t use academic criteria when evaluating candidates for its academic program.” Rappaport calls this a “frightening” prospect, all the more so since the Clinton administration seems to agree with MALDEF. Judith Winston has told the Los Angeles Times that “race- neutral criteria” like the LSAT can “have a discriminatory effect” punishable under federal law.
As it happens, there is no federal case law — none — that supports such disparate-impact analysis for admissions to higher education. And no federal court is likely soon to endorse it.
But the Clinton administration does not care. This is not about what the law says. It is, instead, an attempt to frustrate the law. It is a rearguard action against both judges and voters, an effort to achieve through bureaucratic bullying what the president cannot achieve through honest public persuasion: the retention of race-conscious policy — forever.
Norma Cantu and her ilk run amok, while President Clinton stages a diversionary “national conversation.” Something must be done. Congress has budgetary and oversight authority over the Department of Education. We’ve said it before. We’ll say it again. If there’s to be a real political conversation about race, Congress needs to make its own views count.
David Tell, for the Editors
