The Magazine

Supreme Confusion

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