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.
Lest it be thought that the principles Sullivan articulated in these articles were somehow limited to the arcana of annuities and pensions, her second article noted that “one of us” (her husband, Douglas Laycock) had discussed their belief in the “stringent prohibition on the use of race and sex” at length in another longer and more philosophical article, “Taking Constitutions Seriously: A Theory of Judicial Review,” 59 Tex. L. Rev. (1981), a fifty-one page review of John Hart Ely’s Democracy and Distrust. Endorsing “the individualistic equal protection that emerges from the constitutional text,” Laycock flatly rejected Ely’s view that the Equal Protection Clause “confers benefits on blacks and other suspect classes that it does not confer on whites and other non-suspect classes” and his corresponding conclusion “that Title VII of the Civil Rights Act of 1964 does not prohibit all reverse discrimination.” Ely’s fundamental error, Laycock argued, was his focus “on groups rather than individuals.”
Anticipating the reply that the colorblindness he endorsed would inhibit racial progress, Laycock argued:
It is no answer to say that Ely’s construction is more likely to produce social and economic equality in the long run. That statement, which I do not concede, is comprehensible only in terms of equality for groups. But the constitutional command is equality for individuals. Moreover, it is the “protection of the laws” that must be equal, not social and economic statistics.
In her 1980 article discussed above, Sullivan cited, with unqualified approval, Sen. Hubert Humphrey’s insistence during the debate over the Civil Rights Act of 1964 that “the meaning of racial or religious discrimination is perfectly clear …. [I]t means a distinction in treatment given to different individuals because of their different race, religion, or national origin.” But by 2006, as provost at Michigan, in an affidavit challenging the Michigan Civil Rights Initiative, she professed confusion over the meaning of “shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity or national origin.” Sullivan found that requirement, according to a brief filed in the case, “simply too puzzling to be implemented.”
In short, the contradiction between her earlier and later view of civil rights could not be more stark. The essence of engineering “diversity,” after all, uses race and ethnicity “as cheap proxies for traits with which they are correlated,” regards individuals “as part of a racial, sexual, religious, or ethnic group,” requires treating them “differently because of [their] membership in such a group,” acts on the belief that “diversity” is “more important than nondiscrimination,” and thus violates what Sullivan repeatedly argued is the “most fundamental principle” of civil rights law and tradition.
Writing about Hopwood several years after it was decided (but before it was effectively overruled by the Supreme Court in Grutter in 2003), Laycock revealed how far he and Sullivan had traveled from their earlier views by arguing that affirmative action didn’t discriminate against very many people (an argument I’ve addressed here, here, and here). “With more than 4000 applicants a year,” he wrote, “affirmative action for a hundred or so of them has little effect on everybody else.”
Perhaps not, but it had a dramatically negative effect on those “hundred or so” Asian and white individuals every year who were “treated differently” because of their “group affiliation,” and would have been admitted but for their race, but were denied admission to make room for less qualified students whose race or ethnicity was used “as cheap proxies” for other qualities. Indeed, Laycock’s view that a policy’s racial discrimination doesn’t matter much (“has little effect”) if there are only “a hundred or so” victims of it a year “is comprehensible only in terms of equality for groups,” a position he so effectively criticized in his review of Ely.
Since the Supreme Court has held many times that race cannot be preferred “for its own sake,” if it chooses to rein in Grutter rather than throwing it out, one way it could do so would be to require universities to list with some specificity precisely the traits and characteristics for which they desire to use race and ethnicity as proxies. That would allow admissions officers, through the magic of “holistic review,” to inform candidates like Abigail Fisher exactly how and where they are “diversity” deficient. If the Court chooses to go that route, or even better, to reject “diversity”-justified discrimination altogether, it will find much useful supporting argument and evidence in the early writings of über diversicrat Teresa Sullivan.