Michigan Muddle
The Supreme Court's schizophrenic preference.


Deroy Murdock

The U.S. Supreme Court attempted a Solomonic compromise in the University of Michigan cases on Monday. By embracing the law school’s diversity-driven admissions practices but rejecting those of the undergraduate school, the Court has offered a muddle rather than the lucid guidance this crucial issue demands. Its message seems to be that government schools may to continue to practice racism by focusing on the pigmentation of school applicants — but not too much.

Advocates of racial equality should celebrate the Court’s rejection of the automatic, 20-point advantage given to some (but not all) of Michigan’s undergraduate minority applicants regardless of their circumstances. However, we must remain vigilant against two new areas of mischief this decision has established:

First, the Court’s ruling that diversity constitutes a compelling state interest suggests that racial preference schemes need not be employed as necessary evils to correct past discrimination. In the name of burying Jim Crow or combating some similar, modern-day ill, one could argue for such measures. However, this newly enshrined diversity standard means that racial engineering may continue to craft classrooms, and perhaps workplaces, to “look like America,” as Bill Clinton once put it. If that involves racial discrimination against whites or non-approved minorities (such as Americans of Chinese, Japanese, Vietnamese, or Cambodian ancestry), the Court seems to find this acceptable.

Second, Michigan’s law school sought to invite a “critical mass” of minorities to its campus. What’s that, enough blacks and Hispanics to help white kids develop a sense of rhythm? And how many black and brown faces does it take to make that happen?

“Critical mass” is a remarkably vague standard that can stretch just widely enough to encompass whatever racial mix a school administrator deems desirable. While a minority student body of five percent might be “critical” enough at the University of Vermont, Penn State may believe that anything less than 20 percent would be insufficiently “critical.” Pick a number. Any number. You could argue that that figure defines the threshold between an enlightened, socially just “critical mass” and a cold-hearted, high-speed reassertion of white privilege.

Of course, all of this will fuel even more friction among black, white, yellow, and brown Americans. This will generate more litigation and yet another opportunity for the Supreme Court to make up its mind and either conclusively restore equal protection for Americans regardless of ethnicity or thoroughly abandon that principle so we can mourn its loss once and for all and move on.

Co-equal to the other branches of government, the judiciary is supposed to lead, if only by giving coherent signals as to the constitutional fitness of legislative and executive behavior. Rather than shine a beacon decisively in one direction or another, the Court has illuminated a disco ball that will send a dizzying pattern of light beams swirling around us in every direction for the foreseeable future.

— Mr. Murdock is a columnist with the Scripps Howard News Service.