The Magazine

Supreme Confusion

Jul 7, 2003, Vol. 8, No. 42 • By TERRY EASTLAND, FOR THE EDITORS
Widget tooltip
Single Page Print Larger Text Smaller Text Alerts

IN RESPONSE to the Supreme Court's decisions in the Michigan race-preference cases, President Bush issued a statement. "I applaud the Supreme Court for recognizing the value of diversity on our nation's campuses," he said. "Diversity is one of America's greatest strengths. Today's decisions seek a careful balance between the goal of campus diversity and the fundamental principle of equal treatment under the law."

From the president's statement, you'd never know that in its briefs the administration hadn't even addressed the most important issue the Court resolved in the Michigan cases--whether "diversity" is a compelling interest that can justify race preferences, and therefore racial discrimination, in admitting students. Justice Department lawyers were prepared to take a principled stand against the notion that diversity is just such a compelling interest. But the administration decided not to do that. Silent on the diversity rationale, the administration may have contributed to the Court's decision declaring diversity a compelling interest--a decision the administration surely should not be applauding.

Twenty-five years ago, in the landmark Bakke case, the Supreme Court left unsettled the role race might play in admissions, though it did outlaw quotas. Writing only for himself, Justice Lewis Powell set forth the view that "educational diversity" is a compelling interest sufficient to support making race a "plus" factor in admissions. Selective schools quickly embraced the diversity rationale and used it to support race preferences. In recent years, however, lower court rulings had questioned and even repudiated diversity, and the High Court itself had issued a series of equal protection rulings that seemed to leave in doubt whether a majority of the justices would accept the rationale. Even so, when the race-based policies used by its undergraduate and law schools were challenged, the University of Michigan resolved to persuade the Court of the merits of diversity. It enlisted scores of allies and pressed the matter as hard as it could--and it won.

Declining to challenge the diversity rationale, the Bush administration argued in its brief only that the admissions policies at both the law school and the undergraduate school weren't tailored narrowly enough--indeed that their use of race amounted to unconstitutional quotas. The administration's refusal to take issue with the diversity rationale (even as its brief effusively praised diversity as a concept) could not have escaped notice inside the Court. And it may well have influenced the Court's decision to endorse the rationale.

Writing for the Court in Grutter v. Bollinger, the law school case, Justice Sandra Day O'Connor announced "our conclusion" that a school's "interest in [assembling] a diverse student body" is indeed compelling. That conclusion was essentially an act of deference, as O'Connor put it, to "the law school's educational judgment that diversity is essential to its educational mission." The Court's deference extended to the law school's further judgment that it must enroll a "critical mass" of minority students--critical mass being something expressed in numbers--in order to achieve the educational benefits of diversity. O'Connor also accepted the law school's view that, notwithstanding the similar percentages of minorities admitted each year, it did not engage in racial balancing, which would be unconstitutional. And she accepted the law school's representations on the educational benefits of diversity--that having a "critical mass" of minorities helps break down racial stereotypes, enables students "to better understand persons of different races," and makes classroom discussion "livelier, more spirited, and simply more enlightening and interesting."