The Causation Fallacy: Bakke and the Basic Arithmetic of Selective Admissions

Last Term, the Supreme Court turned down two invitations to resolve the constitutionality of affirmative action in college and university admissions. In May 2001, the Court for the second time declined to review a Fifth Circuit decision holding that the use of racial preferences to achieve diversity in the student body serves no compelling interest. A few weeks later, the Court let stand a conflicting Ninth Circuit decision that upheld a law school affirmative action policy on the ground that “educational diversity is a compelling governmental interest that meets the demands of strict scrutiny.” The legal controversy over admissions preferences intensified in August 2001 when the Eleventh Circuit invalidated the University of Georgia’s undergraduate affirmative action policy on the ground that it was not narrowly tailored. With the Sixth Circuit's recent decision upholding the University of Michigan Law School's affirmative action policy and yet another ruling expected soon, the debate will soon come to a full boil. Facing an array of divergent lower court opinions on the issue, the Supreme Court may well decide in the next few months that the time for a final resolution has come. Although the most recent legal challenges to racial preferences in university admissions vary in their details, they are unified by a common narrative — the same narrative that animated Allan Bakke’s law-