Affirmative Action — Neither Here Nor There?

There is something niggling and petty about the affirmative action debate. I speak with some authority, having just written a niggling, petty piece on the subject. Let’s consider the logically precedent question to what the University of Michigan’s admissions policy ought to be: who cares? Why should the Supreme Court bother itself about the matter at all?

Like most plaintiffs in affirmative action challenges, the plaintiffs in Grutter v. Bollinger allege, first, that the school’s admissions policy violates the Equal Protection Clause of the Fourteenth Amendment: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” Roger Clegg, who unlike me is an actual lawyer, says (subscription required) that this enjoins “any state actor (including a university).” Since the University of Michigan doesn’t make or enforce any laws I find this, as an interpretation of the plain meaning of the Amendment, hard to credit. But Clegg has precedent behind him, and if he is correct, U. Mich is prohibited from discriminating by race because it takes state money.

The plaintiffs in Grutter also bring suit under Title VI of the 1964 Civil Rights Act, which states that institutions that receive federal money are not permitted to discriminate on the basis of race. The Supreme Court ruled in 1984 that a university is under the auspices of federal regulation if even a single student receives federal aid, which means, of course, that the University of Michigan, along with virtually every other college and university in the country, must answer to Title VI. So U. Mich is again prohibited from discriminating because it takes federal money.

Now suppose the University of Michigan renamed itself Independence University and took neither state nor federal money. Then its admission policies would be its own business (not quite, according to current law, but pretty close). Suppose all the other colleges and universities in the country followed suit, and were thus free to set their own admissions policies. How long would affirmative action survive, buffeted by the chill winds of the marketplace? This story about Rice University, which has a less extreme or at least less frank affirmative action policy than most, gives a strong indication. (Link from Discriminations.) It would disappear, for the simple reason that highly qualified black students prefer not to have their admission tainted. So is the real problem that the University of Michigan discriminates against whites, or that it feeds at the public trough?

Private higher education in this country is dead. With the exception of a few eccentric institutions, like Hillsdale College, that refuse to accept federal money, private colleges and universities depend to such an extent on the federal government for research funds and student tuition aid that the old Berkeley Chancellor Clark Kerr, no privatizing zealot, refers to them as “federal grant universities.” Principled libertarians ought to worry a little less about affirmative action and a lot more about the gradual takeover of American higher education by the government. Eventually colleges and universities will have very little say over whom they admit, and what they teach, at all. We have the edifying model of public elementary and secondary education to look forward to. Among these ruins, to argue about affirmative action is, as Malcolm X used to say of Martin Luther King, like arguing about who gets the jobs at the post office. It’s squabbling over the spoils.

(Update: Bart Burgess comments.)