In the 1978 Bakke case concerning preferences in a medical school's admissions, Justice Lewis Powell, the swing vote on a fractured court, wrote that institutions of higher education have a First Amendment right - academic freedom - to use race as one "plus" factor when shaping student bodies to achieve viewpoint diversity. Thus began the "educational benefits" exception to the Constitution's guarantee of equal protection of the laws.
But benefits to whom? For 33 years, the court has been entangled in a thicket of preferences that are not remedial and hence not temporary. Preferences as recompense for past discrimination must eventually become implausible, but the diversity rationale for preferences never expires.
Liberals would never stoop to stereotyping, but they say minorities necessarily make distinctive - stereotypical? - contributions to viewpoint diversity, conferring benefits on campus culture forever. And minorities admitted to elite universities and professional schools supposedly serve the compelling goal of enlarging the minority component of the middle class and professions.
But what if many of the minorities used in this process are injured by it? Abundant research says they are, as two amicus curiae briefs demonstrate in urging the court to take the Texas case.
In 2003, when the court ruled on two cases arising from University of Michigan undergraduate and law school racial-preference policies, the court contributed more confusion than clarity. It struck down the undergraduate policies as too mechanistic in emphasizing race but upheld the law school's pursuit of educational benefits from a "critical mass" of certain approved minorities.
The details of the Texas policies are less important than what social science says about the likely consequences of such policies. A brief submitted by UCLA law professor Richard Sander and legal analyst Stuart Taylor argues that voluminous research refutes the legal premise for such racial classifications: They benefit relatively powerless minorities.
"Academic mismatch" causes many students who are admitted under a substantial preference based on race, but who possess weaker academic skills, to fall behind. The consequences include especially high attrition rates from the sciences, and self-segregation in less-demanding classes, thereby reducing classroom diversity. Blacks are significantly more integrated across the University of California system than they were before the state eliminated racial preferences in 1996, thereby discouraging enrollment of underprepared minorities in the more elite institutions.
Sander and Taylor report: "Research suggests a similar pattern nationally; scholars have found that the use of large racial preferences by elite colleges has the effect of reducing diversity at second-tier schools." Another study showed that even if eliminating racial preferences in law schools would mean 21 percent fewer black matriculants, there would still be no reduction in the number of blacks who graduate and pass the bar exam.
A second brief, submitted by three members of the U.S. Commission on Civil Rights (Gail Heriot, Peter Kirsanow and Todd Gaziano), argues that racial preferences in law school admissions mean fewer black lawyers than there would be without preferences that bring law students into elite academic settings where their credentials put them in the bottom of their classes. A similar dynamic is reducing the number of minority scientists and engineers than there would be under race-neutral admissions policies.
There are fewer minorities entering high-prestige careers than there would be if preferences were not placing many talented minority students in inappropriate, and discouraging, academic situations: "Many would be honor students elsewhere. But they are subtly being made to feel as if they are less talented than they really are." This is particularly so regarding science and engineering, which are, as Heriot, Kirsanow and Gaziano say, "ruthlessly cumulative": Students who struggle in entry-level classes will find their difficulties cascading as the academic ascent becomes steeper. Hence the high attrition rates.
The court should use the Texas case to acknowledge the intersection of constitutional law and social science regarding racial preferences, and to revisit the crumbling legal rationale for them.
Until it does, diversity bureaucracies on campuses will continue to use minority students as mere means to other people's ends, injuring minorities by treating them as ingredients that supposedly enrich the academic experience of others.
In six devastating words, the Heriot-Kirsanow-Gaziano brief distills the case against the "diversity" rationale for racial preferences: "Minority students are not public utilities."
George Will's email address is georgewill@washpost .com. He writes for The Washington Post Writers Group.