“Today’s decisions seek a careful balance between the goal of campus diversity and the fundamental principle of equal treatment under the law.”
These were the words of President George W. Bush in his statement about the decisions of the United States Supreme Court in the two cases involving the admissions policies of the University of Michigan. The president’s assessment, unfortunately, could not be more accurate.
For the past 25 years, since the Court issued its ruling in Bakke v. Board of Regents of the University of California, America’s colleges and universities have been trying to “balance” a goal and a principle: the pursuit of “diversity” and the guarantee of equal treatment under the law for every person. Until now, the goal has been just that — a goal. With the recent UM decisions, however, the Court has, with a stroke of a pen, tipped the scales in favor of the goal, and catapulted it over the principle.
Not in my most nightmarish speculation about what the Court might do regarding these cases did I envision that the justices of the highest court in the land would actually accord “diversity” not only equivalent status to the equal-protection clause of the Fourteenth Amendment, but to make the latter subordinate to the former.
While there are some things to applaud about these decisions — such as reaffirmation of the unconstitutionality of identity quotas — the strong (although inconsistent with other reasoning) suggestion of a 25-year “sunset” for race-conscious approaches to college admissions, and the brilliant dissent written by Justice Clarence Thomas that will serve as a beacon for the nation as we continue our quest to solve the contentious issue of race, these are very troubling rulings, taken as a whole.
On the most important issue of “diversity,” the Court fundamentally ruled that if UM says racial “diversity” is compelling, that’s good enough for them. While I (and many others) viewed the UM reasoning about diversity as the “snow job” of the century, the Court saw otherwise and elevated Justice Lewis Powell’s dicta in the Bakke case to the law of the land. Surprisingly, the Court put the “compelling” need for “diversity” at the law school on par with “diversity” for purposes of national security. This conclusion will torture the nation for decades to come.
Let it be said that when given a chance to complete the liberation of black Americans, on June 23, 2003 five justices consigned them to another generation — or, perhaps, a term of indefinite duration — of virtual enslavement to the past. Instead of being free to just be Americans, the Court has entrapped American-born blacks in a seemingly inescapable web of being set apart from the rest of America, as well as prolonging the suspicion and stigmatization that is visited on the accomplishments of high-achievers who are perceived to benefit from “diversity” and “affirmative action” just because of their skin color. In addition, the Court has simultaneously legitimized a new victims’ class — Hispanics — that will accelerate its demands for the fruits of race preferences. The Court has given ethnic- and racial-identity politics a victory about which it can crow and fuel its destructive hold on our nation.
No one who believes in personal freedom; no one who believes in the capacity of individuals to be resourceful and self-reliant; no one who has faith in the ultimate ability of Americans to treat others as they want to be treated; no one who believes our nation should be governed by a Constitution and not by the whims of five arrogant justices; and no one who believes in the rule of law — in this instance the 1964 Civil Rights Act; can rejoice about these decisions.
During the darkest hours of the civil-rights movement, Martin Luther King Jr. invoked the principle of equal treatment inspired by our Declaration of Independence and embedded in our Constitution. As he summoned the nation to live out our Creed that “all men are created equal,” and as he implored the nation to treat “the Negro” accordingly, Dr. King said: “If I am wrong about this, the Constitution is wrong. If I am wrong about this, the Supreme Court is wrong.” Sadly, it is now the Court that has lost its moral authority to interpret the Constitution as King proclaimed.
My hope that these two cases would provide an opportunity to resolve our nation’s nightmare of “race” has been brutally dashed.
The Grutter and Gratz decisions, taken together, represent a sad and tragic chapter in American history. June 23, 2003 was the day that the concept of academic meritocracy and the principle of equal treatment were murdered by a majority of the Supreme Court so that the goal of “diversity” might live. Adding insult to our national injury is the fact that the head of the death squad was a woman appointed by a president who believed in the principles of personal freedom, merit, and equal treatment as much as, if not more than, any other president in our nation’s history. What a shame!
— Ward Connerly is founder and chairman of the American Civil Rights Institute.