The Magazine

Friends of Discrimination

The American establishment weighs in on behalf of affirmative action.

Mar 31, 2003, Vol. 8, No. 28 • By TERRY EASTLAND
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In sum, the message Michigan and its amici are sending the Court is that a properly diverse America requires the institutionalization of procedures that treat people differently depending on their race and ethnicity. That message is significantly different from the one offered the Court in most of its previous affirmative action cases--namely, that race must be taken into account temporarily, to remedy past discrimination. For the Court to accept Michigan's argument, it would have to get over its scruples about race-based classifications, which it has expressed even in cases where it has approved them. It would have to bring itself to believe, for example, that Justice Blackmun was wrong in the 1978 Bakke case when, writing in support of affirmative action in admissions, he hoped for the day when affirmative action would be "only a relic of the past" and when "persons will be regarded as persons," without regard to race and ethnicity.

More than merely being unable to accept Michigan's message, the Court may be troubled by it, so much so that it decides to reexamine Title VI of the Civil Rights Act of 1964, which the plaintiffs also invoke. Title VI says, "No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." Because the University of Michigan receives federal money, it must abide by Title VI.

Like the other provisions of the Civil Rights Act, Title VI is a colorblind statute. Influenced by the arguments of the original civil rights movement (before the movement embraced racial preferences), its framers understood "discrimination" to mean (in the words of Sen. Hubert Humphrey) "a distinction in treatment given to different individuals because of their different race." The reason anyone might give for making such a distinction in treatment doesn't matter: The law flatly outlaws discrimination.

Of course, five justices in the Bakke case rewrote Title VI, changing it from a colorblind law to one that "prohibits only those uses of racial criteria that would violate the Fourteenth Amendment if employed by a State or its agencies." Understandably, the parties and the amici on both sides of the Michigan cases have mostly offered the Court their views on the Fourteenth Amendment. But there is no good reason the Court couldn't decide to distinguish Title VI from the Constitution, recover the colorblind rule of Title VI, and enforce it. Were that to happen, it would be up to Congress to decide whether to amend Title VI to permit race-based distinctions--that is, to make racial discrimination acceptable under our civil rights laws. You can bet that Michigan and its supporters would be among the first to lobby Congress to do just that.

Terry Eastland is publisher of The Weekly Standard.

Click here to order Terry Eastland's "Ending Affirmative Action: The Case for Colorblind Justice."