The Magazine

Supreme Confusion

Jul 7, 2003, Vol. 8, No. 42 • By TERRY EASTLAND, FOR THE EDITORS
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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."

O'Connor's treatment of the diversity rationale was hardly searching. In a vigorous dissent, the justice the president has held up as a model for the kind of judges he'd appoint--Clarence Thomas--scored devastating points. The law school seeks to obtain the "educational benefits that flow from student body diversity," he wrote, pointing out that diversity is thus supposed to be the means to the educational benefits, not an end of itself. And yet the law school "apparently believes that only a racially mixed student body can lead" to those benefits. Thomas asked: "How, then, is the law school's interest in these allegedly unique educational 'benefits' not simply the forbidden interest in 'racial balancing' that the majority expressly rejects?" He drew the obvious conclusion--that the distinction between the two ideas is "purely sophistic." Thomas sharply observed that the O'Connor majority conceded the point by using the terms interchangeably: He invited readers to compare two passages in the Court's opinion. One refers to the law school's "compelling interest in attaining a diverse student body," the other to "the compelling interest in securing the educational benefits of a diverse student body."

Thomas also cited social science disputing the claimed educational benefits of diversity. And he emphasized that diversity not only works discrimination against applicants of nonfavored races but also constitutes "racial experimentation" upon "test subjects." Such experimentation is at odds with the moral imperative of treating people not as means to other ends, but as the individuals they are.

What would have happened had the administration articulated some of the same points in challenging the diversity rationale? Maybe O'Connor, a split-the-difference justice often looking for the middle ground, would have deferred to the government's view. Maybe she would not have embraced the diversity rationale as easily as she did, or even at all. Maybe she would have voted to decide both cases on narrow-tailoring grounds, leaving for another day the whole diversity issue. And then again, maybe not. Maybe she would have voted as she did and written the opinion she did. What is clear is that the administration failed to take the stand that was needed in the Michigan cases.

There is something good to say about the two decisions. Now that the Court has settled the diversity question (at least for the time being), future litigation over preferences will deal with "narrow tailoring." And on that issue, the Court's decision in the undergraduate case, Gratz v. Bollinger, may prove helpful in limiting race preferences in admissions.

In Gratz, Chief Justice William Rehnquist concluded that the automatic award of 20 points to minority applicants on account of their race was a violation of narrow tailoring. The admissions policy was interested only in the fact of a person's race, a constitutional violation. Gratz is a victory for equal treatment under the law, and its application could lead eventually to a different evaluation of even a preference scheme like the one upheld in Grutter.

Gratz points to a day that cannot come too soon in America--when people truly are treated as individuals, without regard to race or ethnicity. It's too bad, then, that the president's statement didn't make more of Gratz, which, after all, is the case in which the administration was on the winning side. The long-term goal of achieving a color-blind Constitution will require sounder judicial opinions, but also firmer leadership from the president.

--Terry Eastland, for the Editors