Racial Preferences and Formal Equality

In this paper, I want to discuss an approach to racial preferences different from the one often encountered in the philosophic literature. Many philosophers see racial preferences largely as instrumental: devices that produce admissions decisions that can be evaluated according to certain moral principles. They look to see who’s benefited and who’s burdened by the policies and evaluate those consequences according to some moral theory of a just society. In his paper, for example, James Sterba argues that racial preferences are justified because they are an efficient means to achieve a raceneutral society. I want to suggest, however, that the dividing line between those who favor and those who disfavor racial preferences does not concern differing views about the value of the admissions decisions that might result. It rather concerns the deeper question of whether it is appropriate to evaluate racial preferences on the basis of the results they produce. The organization that is litigating the two University of Michigan cases involving racial preferences that are now before the U.S. Supreme Court and for which I work, the Center for Individual Rights (CIR), does not dispute claims that certain race-specific ways of apportioning admissions slots might lead to admissions decisions that are more precisely just or more educationally efficacious. Instead, it argues that racial preferences nonetheless violate the Constitution’s requirement that every citizen be afforded equal treatment under the law. And it argues that citizens have the right of equal treatment regardless whether it increases or decreases the likelihood that particular admissions decisions will be just or will produce an institution’s desired racial mix of students. The constitutional claim is a formal one; it concerns the form or way government benefits are distributed. It says that the government must distribute its benefits in a regular, predictable fashion, according to rules laid down in advance. This argument against racial preferences is distinct from various claims about who, in the end, more deserves to attend elite public universities or what racial mix of students, in the end, produces the most edifying educational climate. In an important way, the formal argument deliberately sidesteps the moral question of who really deserves to attend the university or which racial mix of student produces the best educational outcomes. And so in this paper, I want to explain why I think it is a good idea for institutions like the University of Michigan to sidestep these types of moral and policy questions—why it is more important to follow its own rules than