Let the Sunshine In

Editor’s Note: This week’s Clarion Call is by Roger Clegg, who is the president and general counsel of the Center for Equal Opportunity in Falls Church, Virginia.

Last November, voters in Michigan overwhelmingly mandated an end to the use of racial and ethnic preferences in, among other things, public university admissions there. In a Democratic year in a blue state–and over the opposition of the educational establishment, most leaders in both political parties, the media, big business and labor unions, and even prominent clergy–58 percent of the people rejected this kind of discrimination.

One would think and hope that the citizens of North Carolina would feel the same way. Most Americans agree that, as Martin Luther King, Jr. said, people should be judged not on the color of their skin, but the content of their character. When it comes to higher education, that means treating all applicants under the same standards, not having different criteria depending on a student’s race.

At a minimum, you would think North Carolinians would like to know whether the state’s public universities treat some student applicants differently from others based on skin color and, if so, how differently, and for what reason.

Under a model bill that the Center for Equal Opportunity has drafted, public universities would be required to report annually whether they consider students’ skin color and national origin in deciding who gets in and who doesn’t. If they do weigh such factors, then the school must also spell out how extensively and heavily they are weighed. In general, each university would have to document how the school’s admission policy falls within the narrow limits on such discrimination laid out by the U.S. Supreme Court in 2003.

In Gratz v. Bollinger, the Court ruled that the University of Michigan’s undergraduate admission policy, which granted large and automatic point advantages to applicants who said they were members of certain minority groups, was unconstitutional. However, in Grutter v. Bollinger, it also said that the University of Michigan Law School’s approach, which was said to be more nuanced and individualistic, was permissible.

University of North Carolina representatives have said that the school does employ racial preferences, but only in a legal way. With the Sunshine Act in state law, citizens would be able to see how racial preferences are being used. Then they could make up their minds based on knowledge, not just official assurances that “There’s no problem here, folks.”

It is hard to see how anyone could object to such a bill. Even those who support the use of racial and ethnic admission preferences cannot argue that such discrimination ought to take place in secret. Taxpayers have the right to know whether government and government-supported institutions are engaging in racial and ethnic discrimination and, if so, whether they are following the rules the Supreme Court has set forth. That’s all the proposed legislation would do.

The state’s universities and their political allies would probably oppose the legislation. They know that racial and ethnic admission preferences are generally unpopular, and that if they had to reveal exactly how much they use preferences to decide which students will be admitted, political pressure could build for a ban on their use.

That’s what happened in Michigan. University officials there repeatedly denied that race was anything but a very minor consideration in its decisions. When its admissions data were carefully analyzed, however, it became evident that race was a very important and often the deciding factor. The adverse publicity generated momentum for the passage of the initiative banning all use of racial preferences. Sunshine might have the same effect in North Carolina.

Freedom-of-information requests filed by the North Carolina Association of Scholars over the years have consistently found strong evidence – published by the Center for Equal Opportunity – of severe racial and ethnic admissions discrimination at North Carolina State University and elsewhere in the University of North Carolina system. CEO is in the process of analyzing data it has received pursuant to other NCAS freedom-of-information requests.

Schools are putting significant taxpayer dollars at risk if they are continuing to engage in prohibited discrimination. That is because, when preferences are successfully challenged, the state must pay its own lawyers, the opposing side’s lawyers, and the damages suffered by the discriminated-against students. This is another good reason why taxpayers ought to be made aware of what UNC officials are doing.

This “sunshine” approach is not unprecedented. Federal legislation along the same lines was introduced in Congress last year and will be reintroduced this year. Other state legislatures have and are considering this approach, as is the U.S. Commission on Civil Rights. Senator Ted Kennedy has stated that he wants schools to disclose preferences given to children of alumni (so-called legacy admissions); well, if that’s a good idea, then doesn’t disclosure of racial and ethnic preferences (which are much more dubious legally) make sense, too?

It would be best, of course, if North Carolina schools would simply decide on their own not to consider race in deciding whom to admit. At last October’s Pope Center conference on the subject of diversity, Ward Connerly gave an impassioned speech explaining why it’s time for America to get past its obsession with race and just treat each person as an individual, rather than a representative of some group. That was excellent advice. But if state university officials insist on using racial preferences, the General Assembly should at least demand that they make their policies open to public scrutiny.

My belief is that the use of racial and ethnic preferences will be dramatically limited if it has to withstand the glare of publicity. That’s why this effort to let the sunshine in is so important.

Roger Clegg is president and general counsel of the Center for Equal Opportunity in Falls Church, Virginia.