April 23, 2014 2:58PM

Reflections on Schuette v. Coalition to Defend Affirmative Action

Right on cue, the New York Times editorialized this morning against yesterday’s Supreme Court decision upholding the right of Michigan’s citizens to amend their constitution to prohibit the state from engaging in affirmative action, which they did in 2006 by passing, by a large margin, a proposition prohibiting racial, gender, ethnic, and national origin preferences in public employment, education, and contracting. The Times was not alone, of course. NPR’s lament this morning was a solo interview of Lee Bollinger, president of my undergraduate alma mater, Columbia University, and the defendant in the 2003 Gratz and Grutter affirmative action decisions when he was president of the University of Michigan.

It was a bad day for affirmative action, but a good day for the Constitution. Yet neither of those commentaries, nor any of the five opinions that issued from this split decision, came to terms with the discrimination that is inherent and hence inescapable in government undertakings as such, and is at the core of this problem today.

Among other things, the editorialists at the Times note that “the justices disagreed about whose rights were at issue: the minorities who would be affected by the ban or the majority of the state’s voters who passed it.” Justice Kennedy, writing for a three-judge plurality, sided with the voters, taking no position on the constitutionally of race-conscious public practices. Justice Sotomayor, joined by Justice Ginsburg in dissent, wrote that “Our Constitution places limits on what a majority of the people may do,” such as when they pass laws that “oppress minorities,” the Times adds.

Conflicting rights? If there were a right to preferential treatment by the state, the Constitution’s Equal Protection Clause would have no meaning—as Justice Scalia, joined by Justice Thomas, made clear in his concurrence. But that’s not the right the plaintiffs in this case brought before the Court. Their claim, rather, was that by prohibiting the state from considering only certain factors—race, for example, in university admissions, but not others, such as legacy—those with such characteristics are disadvantaged vis-à-vis the latter because, to be given preferences, they must not only win in the legislative arena, but must also overturn a state constitutional amendment, all of which amounts to unequal treatment in violation of the U.S. Constitution’s Equal Protection Clause.

The argument is not without merit: In fact, it persuaded eight of the fifteen Sixth Circuit judges who were sitting en banc below, producing five dissenting opinions. And the issue cannot be resolved, of course, unless we go to the underlying question of whether preferences themselves violate equal protection, which they do, but which Kennedy, unlike Scalia, was unwilling to say.

The deeper question, however, unaddressed by all, is why we stop at race, gender, ethnicity, and national origin as forbidden grounds for discriminating. Why not sexual orientation, marital status, appearance, socio-economic background, and more? Why, that is, can the University of Michigan take legacy, or athletic ability, or musical talent into consideration when making admissions decisions, but not race, gender, etc.? Is legacy permitted because that’s likely to lead to more alumni contributions, and athletic and musical talent for the same reason, plus the long history of college football and marching bands? For that matter, why does academic aptitude play so prominent a role in admissions decisions? Don’t the parents of the academically less gifted pay taxes to support the University of Michigan too? The dirty little secret of public higher education, of course, is that it amounts to a massive transfer of wealth from the lower to the upper classes of any state in which we find it, as Justice Thomas pointed out in his Grutter dissent.

And so we come to the point of it all, to the discrimination that is inherent and hence inescapable in government undertakings as such. All public institutions, like their private counterparts, have to discriminate in countless ways if they’re to function. But whether they’re educating, hiring, contracting, what have you, they belong to all of us and so may discriminate only on grounds that are narrowly tailored to serve their functions. But what are those functions—and those grounds? Education may be the main function of a public university—hence the presumptive centrality of academic merit as a legitimate ground for discrimination. But are there other functions? Is football central to the function of a university—and hence athletic ability a legitimate ground for discriminating? Tell that to another of my alma maters, the University of Chicago.

Plainly, if we go to these core questions—these First Principles—this argument can go either way: If athletic ability can justify discriminating in favor of an applicant—and against another—then why may not a public university’s admissions officers take race into consideration, just like a private university may—at least in an ideal world?  The reason, doubtless, is because of our long history with racial and, to a lesser extent, gender and ethnic discrimination. Under the Equal Protection Clause, those factors are singled out for special consideration, understandably, just as sexual orientation today increasingly is. But the principle of the matter is perfectly general. If, before public decisionmakers, all must be treated equally, meaning that discrimination must be narrowly tailored to serve a public institution’s function, then a decisionmaker’s discretion must be limited.

The broader conclusion, however, is that there are no clear, undisputable answers to these questions. But what is clear is that much of this could be avoided—not eliminated, as we will always have a public sector—if we did less through the public sector. Why, for example, is government involved in higher education—or in education generally, for that matter? Public universities should not be permitted to discriminate on the basis of race, which is what affirmative action amounts to, but private universities ought to be free to engage in all the affirmative action of whatever kind they wish. There’s the solution to the problem: once again, less government.