Efficacy of Race PreferencesThe justification-du-jour for race preferences in college admissions is the need for diversity among students. As Julian correctly points out, this justification can only stand judicial scrutiny if race is used as a *proxy* for diversity of viewpoints and experience, it being “settled law that mere racial diversity is invalid on face as a state purpose.”
If that’s so, then it seems to me that race preferences for diversity purposes should have to meet some kind of *efficacy* test. If their goal were the promotion of racial diversity per se, then efficacy would be a no-brainer: obviously a program that gives extra weight to members of underrepresented groups will tend to increase their representation (indeed, if it didn’t, then the opponents of the program would have no basis for objecting). But if race preferences are acceptable only as an instrument for attaining some other goal, then the question arises as to whether that other goal is actually being furthered by the policy.
I wouldn’t be surprised to find that it’s not. It may be difficult to measure diversity of viewpoints and experience, but as a first approximation, we could look at party membership or ideological self-identification. The question would be whether the race preference policies had increased the representation of currently underrepresented political views on campus, relative to institutions without such policies. Now, I haven’t seen any recent data on the political views of students, but according to a recent study, ideological diversity among *faculty* is ridiculously low. Liberal faculty often outnumber conservative faculty by 10 or 20 to one, whereas liberals and conservatives are approximately equal in the general population. If the views of students are anything like those of faculty, then a policy designed to increase viewpoint diversity would have to increase the number of right-leaning students enrolled. What is the chance that a preference for minority races would have such an effect, given that minority groups are typically more left-leaning than the general public?
I could be wrong. Maybe race preferences do increase diversity, perhaps by creating more balance between the moderate left and the far left. Diversity of experience could be another matter -- it's more plausible that minority students differ from the majority of white students in their economic background than in their politics. (But economic background could be targeted directly; there's no need for a proxy for something easily measured.) Still, if the constitutional case for race preferences now rests solely on the achievement of diversity of viewpoints and experience, shouldn’t there at least be an attempt to measure the output? If separate water fountains for blacks and whites were justified on the basis of the state’s compelling interest in encouraging good hygiene, we would either (a) reject the policy on its face, or (b) demand at least some evidence of the policy’s efficacy in improving public health. In the case of race-preferences, since we haven’t rejected them outright, shouldn’t we confront the issue of efficacy?
I’m guessing that the courts would rather not rely on such a test, because efficacy lies in the traditional province of the legislature. The Supreme Court would rather judge constitutionality on the basis of text and reason, not social scientific data. But on the other hand, if a policy’s results are so radically at odds with its supposed goals (or “compelling state interests”) as to cast doubt on whether they are its actual goals, the Court should be less willing to bow to the legislature’s judgment. And that seems pretty likely to me in the cases at hand: proponents of race-preference programs are now justifying them on the basis of diversity because that’s the only constitutionally valid argument left to them. Some of them *might* care about diversity, but I suspect most would happily sacrifice viewpoint diversity on campus if it implied the inclusion of more right-wingers or fewer members of minorities.