The Court failed to do its duty.


The legislators of 1868 were masters of brevity. The Fourteenth Amendment to the Constitution guarantees “equal protection of the laws” to “all persons.” It turns out that what that amendment really means is that state governments may discriminate on the basis of race, so long as they do not employ mathematical formulas in doing so. It is “permissible” for state universities to set “goals” for the racial composition of their student bodies, but “quotas” are impermissible. It is okay to seek a “critical mass” of minority students, so long as the students are not admitted on a “separate admissions track.” Race can be a “plus factor,” but there must also be an “individualized, holistic review of each applicant’s file, giving serious consideration to all the ways an applicant might contribute to a diverse educational environment.” Universities that practice racial discrimination must be subject to “strict scrutiny,” but at the same time their judgment that discrimination is necessary deserves “deference.” All of this is what Justice Sandra Day O’Connor, writing for the Supreme Court, has made of the Fourteenth Amendment. This is what President Bush, to his shame, has applauded.

The Court upheld the University of Michigan’s preferential treatment of black, Hispanic, and American Indian applicants to its law school — its admissions policies being judged suitably “individualized” and “holistic” — but struck down the university’s racially discriminatory treatment of undergraduate applicants for being rigid and formulaic. Justice O’Connor’s jurisprudence, leery as it is of articulating clear legal principles, has here become self-parodic. Once again, she has issued a decision that necessitates further litigation to clarify its meaning. When is a review “holistic” enough? When does a goal become a quota? Some future court will have to explain, because O’Connor’s Court has not deigned to.

In their dissents and concurrences, justices to O’Connor’s left and to her right pick her logic apart. O’Connor says that state universities have a “compelling interest” in the educational benefits that supposedly come from racial diversity. It is this compelling interest that justifies racial discrimination that would otherwise be forbidden; and it is the granting of constitutional status to this interest that constitutes the most substantial legal development in O’Connor’s decision. Justice Ruth Bader Ginsburg asks why, if this interest is compelling, the state university is forced to pursue racial balance without using mathematical formulas. Why use “camouflage” instead of “candor”? It’s a good question. Judging from the modern history of racial preferences, the answer appears to be that the preference regime requires deception, and self-deception, to survive. Too much candor about its operations would be fatal.

Justice Clarence Thomas asks why the university could not find non-discriminatory ways to achieve racial diversity. It could, he suggests, admit students by lottery rather than by looking at test scores and GPAs: That method would have a strong likelihood of producing a diverse student body. The university says that any such method would unacceptably compromise its educational standards. Racial diversity therefore must bring educational benefits so great that they justify discrimination, but also so small that they cannot make up for the decline caused by lowered admissions standards. In other words, says Thomas, what the Court is saying is that the discrimination is justified to advance the university’s compelling interest in “offering a marginally superior education while maintaining an elite institution.”

One of the reasons the Court trusts the university’s judgment about its need to discriminate is that the First Amendment supposedly protects the university’s autonomy. Justice Thomas acidly notes that the Court showed no such concern seven years ago for the Virginia Military Institute’s autonomy. There, equal protection was held to require the admission of women. VMI’s judgment that it would have to sacrifice elements of its character received no “deference” then. The Court held that the changes necessary were “manageable.” Concludes Thomas: “Apparently where the status quo being defended is that of the elite establishment — here the Law School — rather than a less fashionable Southern military institution, the Court will defer without serious inquiry and without regard to the applicable legal standard.”

The Court does not inquire, for example, whether the ending of preferences in the University of California system has led to a massive loss of racial diversity or educational quality in its elite law schools. (It has not.) It does not inquire whether preferences have adverse educational effects, such as placing black and Hispanic students on campuses where they are less likely to succeed. It does not inquire whether preferences may hinder the “cross-racial understanding” that is one of the purported educational benefits of diversity by stigmatizing its beneficiaries. (Justice Antonin Scalia also alludes to the Court’s failure to inquire whether universities, which tolerate and even encourage a fair amount of racial segregation on campus, are really trying to promote “cross-racial understanding.”)

Finally, Justice O’Connor says that the Court “expects” that in 25 years no racial discrimination will be necessary to derive these educational benefits. Justice Thomas valiantly tries to make this into a rule that preferences will be unconstitutional in 25 years’ time. But the truth is that O’Connor’s hope means nothing, operationally. She provides no criteria by which the Court could determine, by then, that preferences are no longer necessary; she does not even provide much evidence that her expectation is justified. For the indefinite future, all universities will have to do to maintain effective quotas is hire the staff necessary to create a façade of “individualized review.”

The dissents filed or joined by Chief Justice Rehnquist and Justices Scalia and Thomas — even the one filed by Justice Anthony Kennedy — are vastly preferable to O’Connor’s opinion for the Court. But it must be said that none of the justices bothered to perform an analysis of the historical meaning of the Fourteenth Amendment. (Scalia and Thomas assert that it bars all discrimination, without providing an originalist argument, or any argument at all, for that conclusion.)

The best Supreme Court opinion on racial preferences remains Justice John Paul Stevens’s dissent in Bakke, the 1978 case that created the muddle in which O’Connor now wallows. Stevens wrote then that the issue could be decided without reference to the Constitution, since a statute had already settled the matter. The Civil Rights Act of 1964 declared that no person “shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” Nowadays Stevens votes with the hard-core pro-quota bloc. But his reasoning remains unrefuted. Michigan’s racial preferences — both its law-school and undergraduate preferences — are thus illegal. Most of the justices write as though the Civil Rights Act had never been passed; O’Connor dismisses it in two disingenuous lines.

Actually imposing the law of the land would be unacceptable to all of America’s elites — legal, corporate, journalistic, and political. That’s why what seemed like the entire American establishment filed briefs on Michigan’s side. It’s why the Bush administration filed a brief that shrank from colorblindness: a political signal that Justice O’Connor appears to have read all too well. All the opponents of racial preferences have going for them is the public’s naïve sense of justice. Preferences were never adopted democratically. In fairly worded polls and ballot initiatives, they fail every time. The Court having failed to do its duty, it is up to the rest of us to take political action to abolish racial preferences.