After the courts and popular initiatives began to ban affirmative action, I noticed that state legislatures and universities rebelled, deciding on their own that racial diversity is more important than meritocracy... In other words, I became convinced that selective universities can't achieve colorblindness, diversity and high admission standards at the same time. They can achieve only two out of the three goals. For the most part, schools would prefer to choose standards and diversity, using racial preferences to create a diverse class while keeping standards relatively high. But if the courts order colorblindness, America's finest public and private universities won't hesitate for a moment in choosing diversity as the second goal, allowing rigorous admissions standards to go out the window. This is a prospect that both the Bush administration and some of the conservative justices on the Supreme Court seem ready to embrace. ''If Michigan really cares enough about that racial imbalance, why doesn't it . . . lower the standards, not have a flagship elite law school?'' asked Justice Antonin Scalia at the oral argument. ''It solves the problem.''
I first encountered the argument that eventually persuaded me to change my mind about affirmative action in a Supreme Court brief filed by three University of Texas law professors in 1997. In the brief, they predicted with eerie accuracy the political pressures that would lead public universities to lower academic standards if the courts prohibited racial preferences. ''If affirmative action is ended, inevitable political, economic and legal forces will pressure the great public universities to lower admission standards as far as necessary to avoid resegregation,'' wrote Douglas Laycock, Samuel Issacharoff and Charles Alan Wright. ''The complete end of affirmative action would be a formula for the destruction of the great public universities.''
As it happened, the pressures to lower admissions standards in Texas and California played out precisely as the professors predicted. After the United States Court of Appeals for the Fifth Circuit banned affirmative action in 1996, the Texas Legislature adopted a series of laws that required the University of Texas to lower its admissions standards in various ways. First, the Legislature adopted a ''10-percent plan,'' which guaranteed that any students who graduated in the top 10 percent of their high-school classes would be admitted to any public university in Texas, regardless of their test scores, the classes that they took or their ability to contribute to intellectual diversity.
According to Douglas Laycock, who has reviewed the undergraduate admissions figures for the University of Texas, the school before the 10-percent plan admitted 93 percent of all applicants at the top 10 percent of their high-school classes. Now it has to admit the remaining 7 percent of white and black students who would have been rejected under the old system. I asked Laycock to describe the students in this group. ''These are students with some serious weaknesses elsewhere in the file,'' he said. ''Either very low test scores, or they didn't take college prep courses, or their recommenders have serious reservations, or they have a lousy writing sample or some combination of those things.''
In other words, by taking a single attribute -- class rank -- and requiring the university to throw out all the other more nuanced measures of intellectual diversity and academic ability -- from test scores to musical skills to success in overcoming adversity -- the 10-percent plans guarantee the admission of white and black students who are both less academically prepared and also less likely to contribute to the diversity of the university as a whole than the white and black students they are displacing. The effect on academic standards has been tangible: Laycock said the percentage of students admitted from the top 10 percent of their classes with SAT scores below 1,000 has tripled since the 10-percent plans were introduced. To keep the new admits from dropping out, the university has had to offer remedial classes.