For a couple of weeks in June, academic politics exploded beyond campus borders when the University of Virginia’s Board of Visitors fired the Charlottesville flagship’s recently hired president, Teresa Sullivan, and then unanimously rehired her after a loud protest from faculty and others. Multiple stories in the New York Times, Washington Post, Wall Street Journal, National Review, USA Today, newspapers large and small across the nation, and an avalanche of blog posts attest to the widespread interest in the governance of what, after all, is one of the smaller, though highly selective, major public universities.
The fact that “diversity”-justified affirmative action was the dog that did not bark during that entire controversy is surprising. The fact that the “diversity” dog didn’t bark during the recent Charlottesville kerfuffle is especially odd because, as I noted in some detail in “Was Teresa Sullivan An Affirmative Action Hire?” (and also here), feeding, coddling, and protecting it been such a prominent part of Sullivan’s career. Also, the next president of UVa, like the president of every selective institution, will in all likelihood have to come to terms with a Supreme Court ruling in Fisher v. University of Texas next term that either eliminates or significantly narrows the “diversity” loophole through which academic diversicrats have been driving the locomotive of discriminatory racial preference for a generation.
Throughout her career, Sullivan has clearly been one of the leading and most experienced “diversity” engineers driving that locomotive. At the University of Texas, she held joint appointments in sociology and the law school, and she was vice president and graduate dean in 1996, when affirmative action there was ruled unconstitutional by the Fifth Circuit in Hopwood v. Texas.
Her husband, Douglas Laycock, then on the law faculty at Texas, played a prominent part in the Hopwood defense. Moreover, the very policy that the Supreme Court will review in Fisher — discriminating against whites and Asians and in favor of blacks and Mexican Americans in admissions even though a race-neutral policy (the “top ten percent” plan) had already produced substantial “diversity” — was implemented when Sullivan was executive vice chancellor for academic affairs for the University of Texas System and heavily involved in its development. Later, as provost of the University of Michigan, she was an ardent defender of the race preference policy that the Court upheld in Grutter and will now revisit in Fisher, and she was an outspoken opponent of the Michigan Civil Rights Initiative, a state constitutional amendment that barred the university and other state institutions from granting preferential treatment based on race, sex, or ethnicity.
It will thus no doubt come as a surprise to many people to learn that some of the strongest and most cogent criticism of the principles underlying race preference policies can be found in Sullivan’s own early academic writing. Her dramatic race preference reversal, however, was unfortunately not simply an idiosyncratic inconsistency. It is emblematic of the descent of American liberalism from its former principled devotion to colorblind equality to its present post-principled belief that equality demands distributing benefits and burdens based on race and ethnicity.
Individual vs. Group Rights
In City of Los Angeles v. Manhart (1978), the Supreme Court invalidated a pension plan in which women were required to make larger contributions than men because, as a group, they live longer, rejecting the argument that the statistical association between sex and mortality justified the disparity. In an influential 1980 law review article, Sullivan, then an assistant professor of sociology and faculty research associate in the Population Research Center at the University of Chicago, published a vigorous defense of Manhart’s individual rights analysis with her husband, Douglas Laycock, then a law professor at Chicago, and two others. They argued with great force that the “most fundamental principle” of civil rights is that “no individual shall be considered simply as part of a racial, sexual, religious, or ethnic group, or treated differently because of his membership in such a group.”
Three years later Sullivan, now associate professor of sociology and still research associate in the Population Research Center at the University of Chicago, with Laycock and one other co-author, published another influential University of Chicago law review article responding to a critic of her earlier defense of Manhart who argued that it is both efficient and legitimate to take group differences into account. That mistaken view of fairness, she insisted, “fundamentally misconceives the basic principle of civil rights law” — that it is “unfairness to individuals that lies at the core of civil rights policy.” She fundamentally disagreed with those who “use race and sex as cheap proxies for traits with which they are correlated,” because doing so was unfair to individuals. If individuals could be treated differently because of their race or sex, she wrote incredulously, “[c]ollege admissions officials could use ethnicity as a factor to predict the grade-point averages of applicants” and admit or reject them on the basis of race or ethnicity. “Whenever race or sex is used as a predictor,” she concluded, “some individuals are disadvantaged because of a stereotype that is true of others, but not of themselves.”
The bottom line of Sullivan’s individual rights position uniformly expressed in these early articles was based on a root and branch rejection of the idea that the usefulness of predictions based on statistical correlations between various outcomes and race or sex is ever “more important than nondiscrimination” because “[e]very individual has a right not to be treated as the average member of his sex or race.” Sounding very much like an old-fashioned, not modern, liberal, Sullivan concluded her article by stressing that “[s]ex and race blindness have been the civil rights ideal.” Using race or sex “to predict the future of individuals is fundamentally inconsistent with that ideal,” she argued, “and if generally applied, would have consequences that most Americans would find abhorrent.” Indeed.