The Magazine

Race and the Republicans

The Bush administration shouldn't be afraid to file a brief defending race-neutral admissions in the Michigan affirmative action cases.

Dec 30, 2002, Vol. 8, No. 16 • By TERRY EASTLAND
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There is a practical point here as well. The current Court, when it agrees to hear a controversial case at all, tends to address the big issue at stake. It's hard to believe the justices agreed to hear the Michigan cases merely to write an opinion about the fine points of "narrow tailoring" and leave untouched Michigan's justification for its use of race in the first place--its "compelling interest" in student body diversity. After all, it is the pursuit of "diversity" that has produced Michigan's discriminatory admissions. And Michigan is hardly an isolated case. Schools throughout the country likewise invoke diversity to justify their racial classifications. Which means that diversity-based admissions is a national issue. Indeed, it has been litigated in no fewer than four federal circuits, and those courts are in sharp disagreement. For the administration to get into the Michigan case and fail to address the diversity rationale would be a waste of its time as well as the Court's.

Even so, we can imagine administration officials, influenced by the Lott business, contending that, well, if we must oppose the Michigan policies, we had better do so in a way that won't allow us to be accused of being racists--and a narrow-tailoring brief is thus the one we should file. But there's no appeasing demagogues. For race-mongering Democrats now looking for Republicans to intimidate, any kind of brief is likely to draw accusations of racism.

Make that, almost any kind of brief. Is it conceivable that the Lott business has so distorted the internal debate that some administration officials might actually be considering putting in a brief in behalf of Michigan and its diversity rationale? If that's what the administration winds up doing, the race intimidators will indeed have triumphed. It's hard to believe the president would reverse his stated position opposing diversity admissions, and we like to think that a pro-diversity brief would be rejected out of hand, on principle.

We come, then, to what the administration should do: File a brief opposing the diversity rationale. Its flaws are apparent. The claim made for diversity is empirical, not one of principle. It says that education is improved by interracial conversations and comments that occur randomly, inside and outside the classroom. This claim has been subject to vigorous debate, so much so that you wonder how it can be considered sufficiently "compelling" to justify discrimination. At the heart of the rationale is a racialist assumption, actually stated in Justice Powell's pro-diversity opinion in the landmark Bakke case (1978), that minorities bring to a campus "something that a white person cannot offer." This rationale wrongly sees individuals as fungible members of their racial groups (or the groups to which admissions officers assign them). In addition, the rationale confides to school officials discretion to say which racial and ethnic groups should be favored--and disfavored--in the pursuit of diversity, and by how much or by how little. Diversity regulation may even mean discriminating against those you would expect to be favored. In the Piscataway case several years ago, the Clinton administration acknowledged (approvingly) that the diversity rationale may be used to justify discrimination against blacks. Diversity-based discrimination, by the way, is never-ending, simply because it contains no principle by which it might be ended. For always it will be possible to say that there are both "underrepresented" and "overrepresented" groups.

Yes, a brief arguing against diversity would be the one most intensely criticized by the race demagogues. If the internal debate shifts in favor of such a brief, we can imagine some inside the administration arguing strenuously in favor of just sitting the whole thing out. That would be a purely political argument. But it would fail to recognize the political opportunity--for party and principle--that Michigan affords.