In an engaging but ultimately unpersuasive essay on Minding The Campus ("Affirmative Action, the Bishops and Women's Colleges"), Jonathan B. Imber, a sociologist at Wellesley College, argues that the dispensation given to private women's colleges to discriminate against men provides a model that would allow Catholic institutions to protect their religious values from public encroachment and all private institutions to continue the racial and ethnic preferences that have become like a religion to them.
In Imber's view the core of this model is the crucial distinction between public and private, which he describes as "one of the most precious freedoms in a democratic and pluralistic society, namely, the right of private educational institutions to preserve a space for their own design about how to educate their central mission." He believes that "privacy has its privileges," and proposes what he recognizes as "an unorthodox conclusion: affirmative action among its advocates is ultimately more akin to religious belief than to rational, publicly embraced policy. Its promotion in private institutions can be defended on the same principle that should protect Catholic institutions from being subject to public health prescriptions to which they object."
There is no doubt that proponents of affirmative action defend it with at least a quasi-religious fervor, but unless we completely rethink our understanding of civil rights and the place in our culture (if any) of the principle that individuals should be treated without regard to race, it is not at all clear that every private institution should be given a largely unrestricted license to discriminate.
A threshold but fundamental problem with positing a sharp public-private distinction lies with the distinction itself: the border between them is not clear enough to support such vast discrepancies in the freedom of different institutions to discriminate as they see fit. At the University of Virginia, for example, an ostensibly public institution, the state contributed only 5.6 percent of the operating budget for 2011-2012. At Harvard, by contrast, generally regarded as private, "almost 20 percent of the institution's operating budget stems from sponsored research and nearly 80 percent of that comes from Federal sources."
There are also a number of more practical problems. Implementing Imber's proposal, for example, would require the wholesale rewriting of civil rights law. For example, Title VI of the Civil Rights Act would have to be scrapped since it bars (or would if it were properly interpreted and enforced) federal funds to any institution, private as well as public, that discriminates.
And then there's politics, by which I mean higher education politics. Conversations with pro-affirmative action friends at the University of Texas law school during the Hopwood litigation made it clear to me that they dreaded the prospect of losing in the Fifth Circuit and having the Supreme Court refuse certiorari -- a regionally restricted defeat for affirmative action -- much more than they dreaded the possibility of losing in the Supreme Court, which would have been a much more devastating defeat for affirmative action. Why? Because it would put them at a big disadvantage against their competitors for students and prestige at, for example, the University of Michigan, which was free at the time to engage in preferential treatment based on race. The predictable howls of protest from the "public Ivies" and other selective public institutions if they were precluded from offering racial preferences while their private peers were given a license to continue doing so would make the current Catholic complaints seem mild by comparison.
The primary problem with Imber's proposal, however, is principled, not practical. Discrimination on the basis of race, without which there would be no affirmative action as currently practiced, simply does not deserve the same respect that single-sex colleges had and that women's colleges still have. Nor does or should the nebulous concept of "private"offer the same protection to that discrimination that the First Amendment and the long and deep tradition of religious liberty gives to the extensive (but not unlimited -- just ask Bob Jones University) autonomy of religious institutions. If it did, it would be hard to explain why private colleges were given a privilege to discriminate properly denied by our civil rights laws to all other private organizations.