Commentary

The Court Stumbles Again

This article was published in the New York Sun, June 24, 2003.

Twenty-five years ago the Supreme Court told us, in a 5-4 opinion, that public universities could not use racial quotas in their admissions policies. That was the famous Bakke case involving the University of California at Davis Medical School. Yesterday, in another 5-4 decision, the Supreme Court told us that the University of Michigan Law School could in fact take race into account in its admissions policies.

The Bakke case so muddied the legal waters that lower courts over the years often split as to whether such “affirmative action” could withstand constitutional scrutiny. Yesterday’s decision left the waters no less muddy. As we anticipate still more litigation, Justice Sandra Day O’Connor, writing for the majority in yesterday’s Grutter decision, invites us to find such comfort as we can from this remark: “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”

Dwell on that thought for a moment. First, the Court admits that it is sanctioning racial preferences. As in old decisions upholding Jim Crow, the Court tells the state of Michigan, “You may discriminate on the basis of race.” Second, preferences are justified “to further the interest approved” — the key to yesterday’s decision, “diversity.” Finally, the Court seems to say that it hopes this will all be unnecessary in another 25 years — notwithstanding the past 25 — because, well, there’s something unseemly about what we’re doing here today. The Court didn’t say that, of course. But why even mention the time horizon if racial preferences are morally unproblematic? Why not racial preferences to achieve diversity for as far as the eye can see?

There is indeed something unseemly here. Let’s start with this: The Constitution was written by and for “We the people.” That means government belongs to all of us, equally. It can’t discriminate on irrelevant grounds. It can’t favor some and disadvantage others — in the administration of justice, in the awarding of government jobs or contracts, in the provision of benefits like public education. The long, tortured history of the civil rights movement in America was inspired by a single principle — equal treatment under the law.

Justice Clarence Thomas began his dissent yesterday with a quote to that effect from the great abolitionist, Frederick Douglas, delivered some 140 years ago: “All I ask is, give [the Negro] a chance to stand on his own legs! Let him alone!… [Y]our interference is doing him positive injury.” Thomas concurs: “I believe blacks can achieve in every avenue of American life without the meddling of university administrators.”

He goes to the heart of the matter, however, with this: “No one would argue that a university could set up a lower general admission standard and then impose heightened requirements only on black applicants. Similarly, a university may not maintain a high admission standard and grant exemptions to favored races.” If we stand for equality before the law, we can’t have “racial preferences.” General admission standards are, by definition, race neutral. That’s why standardized tests and grade point averages were introduced in the first place — to ensure equal, unbiased treatment.

What was it, then, that drove Justice O’Connor and the Court’s four liberals to believe that here, at least, the state could engage in rank racial discrimination? The answer goes back to Justice Lewis Powell’s concurrence in Bakke. Writing for himself alone, Powell entertained the possibility that “diversity” might justify race-conscious admissions policies. Not surprisingly, universities across the country seized upon that rationale to justify various preferential programs euphemistically called “affirmative action.” The Michigan programs were challenged. Yesterday they made it at last before the Supreme Court. And five members of the Court bought Powell’s argument.

They began, however, by applying what the Court calls “strict scrutiny”: the state’s purpose in discriminating — to achieve diversity — must be “compelling”; and the means it employs to achieve that end must be “narrowly tailored.” But having set forth that “strict” standard, the Court in its next breath deferred to the university’s judgment about the educational benefits of “diversity.” Indeed, the Court’s entire argument is circular: as Thomas points out, “A close reading of the Court’s opinion reveals that all of its legal work is done through one conclusory statement: The Law School has a `compelling interest in securing the educational benefits of a diverse student body.’”

Nor is the Court’s analysis of the means the university has chosen to achieve diversity any more convincing. In the companion case yesterday, the Court decided that the means the University of Michigan’s college employed to achieve diversity were not “narrowly tailored” — the college awarded 20 of 150 admission points simply for being a minority. The law school’s means, however, were more “individualized” and, to be honest, vague. They got past the Court’s “strict scrutiny.”

No one believes that yesterday’s decisions in the two Michigan cases will bring resolution to this issue. The battle begins anew today, which is the most unfortunate fallout from these decisions. For at the end of the day, the problem of racism is a problem of seeing people not as individuals but as members of classes. Because they encourage us to think in class terms — “diversity” makes sense, if it makes sense at all, only by thinking that way — yesterday’s decisions will only exacerbate the animosity that arises from the belief that some among us are advantaged or disadvantaged simply because of their race. The Brooklyn Dodgers of old got it right. They hired Jackie Robinson not because he was black but because he was good.

Roger Pilon is vice president for legal affairs at the Cato Institute and director of Cato’s Center for Constitutional Studies. The Cato Institute filed an amicus brief in the case discussed.