Now What?
The web the Court has weaved.


According to legal lore, after Sandra Day O’Connor graduated from Stanford Law School, a law firm at which she interviewed was only willing to offer her a job as legal secretary. The wrong-headedness of this decision was decisively demonstrated a few weeks ago, as Justice O’Connor — along with a number of her colleagues, both male and female — determined that the Constitution does not ban racial discrimination, even though it does, and does ban discrimination against homosexuals, even though it does not. Anyone intelligent enough to be a legal secretary would not have made mistakes like that. Clearly O’Connor has an innate inability to comprehend legal texts, should never have been offered a position of any sort at a law firm, and is fit only to be a Supreme Court justice.

The Court’s decision, written by Justice O’Connor, upholding the University of Michigan law school’s use of racial and ethnic admission preferences was particularly appalling and very depressing for anyone who opposes the institutionalized discrimination called “affirmative action.” But the struggle against such discrimination can — must — continue.

It is instructive to ask, What would the Left have done if it had lost? It certainly would not have thrown up its hands in despair and given up. For starters, it would have demanded that Congress act — which we can do, too: amend Title VI of the Civil Rights Act to prohibit racial and ethnic preferences, or at least (as Curt Levey of the Center for Individual Rights has suggested) put teeth in the Court’s limitations on the use of such preferences. The Left would also have attacked the Court (which we are doing), demanded that the next justice vote the right way (which we can do, too), and found another case after the new justice was confirmed to serve as a vehicle to overturn its loss (and this we can do as well: The Center for Individual Rights still has pending a lawsuit against the University of Washington law school). It would have taken the battle to the states, seeking ballot initiatives and legislation (as Ward Connerly and the Center for Equal Opportunity are doing). The Left would have looked for state laws already on the books that might be interpreted as guaranteeing colorblind admissions, and it would have brought public pressure to bear on individual universities — and we can do that, too.

The scope of the Court’s decision was limited in two important ways. First, the Court did not say that admission preferences are moral or right or required. It said only that they were sometimes permissible under present law. That means that Congress, or the states, or schools themselves remain perfectly free to adopt colorblind admission laws and policies.

In the second place, the Court said that the law school’s discrimination was acceptable because it had “a compelling interest in obtaining the educational benefits that flow from a diverse student body,” and that means that the direct damage is limited to the context of higher education.

Thus, it will remain difficult to justify preferences in the two other areas in which they are frequently used, namely contracting and employment. The “diversity” rationale is not used to justify discrimination in contracting — no city argues that it has a compelling interest in potholes being filled from a “black perspective” — and the courts have declined to carve out a “diversity” exception to Title VII of the Civil Rights Act, which bans employment discrimination and explicitly refuses to recognize a “bona fide occupational qualification” for race. Challenges to contracting and employment preferences can still be brought; governments and private employers who use them should be vilified.

Even in the specific instance of higher education, and even in the absence of any change in the law, there is much that can still be done. Many schools have internships, financial aid, and other programs that are not just racially preferential but racially exclusive, and those programs are even more vulnerable now to the challenges that have been brought by CEO and the American Civil Rights Institute than they were before, since the Court has at least made clear that there must be “individualized consideration” given to students. With respect to admissions, it is likely that the systems most selective schools use are closer to the University of Michigan’s undergraduate model (which the Court struck down) than to its law-school model (which the Court upheld), and are therefore vulnerable to attack.

On the latter point, it is true that these attacks are likely to result in only incremental improvements, but so be it. The improvements may still be substantial if the Department of Education’s Office for Civil Rights plays an aggressive role in ensuring that universities’ use of racial and ethnic preferences really are “narrowly tailored” in the way the Court has demanded. The Bush administration, whose lackluster briefs in the Michigan cases give it much to answer for, can help redeem itself.

It would, however, be very foolish for those who oppose preferences to rely for much on the Bush administration at this point. But there are some things that every individual who opposes preferences can do. For instance, refuse to check the silly little boxes on forms that ask your race, particularly if you suspect that those forms are used to facilitate discrimination. Or, if you are an alumnus or alumna of a college or university, write to its president today and tell him or her that, if the school uses racial or ethnic admission preferences, you will never send it another cent, and you will encourage all your alumni friends never to send it another cent either.

The silver lining in the dark cloud of O’Connor’s law-school opinion is its insistence that “all race-conscious programs have a termination point” and her declaration that the Court “expect[s] that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.” There is still much that can be done to move that date up.

But let’s not end on too optimistic a note: The great irony is that the Court’s decision actually will make it less likely that the academic-performance gaps that make preferences seem necessary will diminish. Preferences remove the incentive for individual students to excel academically, and they take pressure off the public schools and politicians who are failing these students. Those who oppose preferences must nonetheless work to keep that incentive and pressure in place, but the Court has made their job harder, not easier.

— Roger Clegg is general counsel of the Center for Equal Opportunity in Sterling, Virginia.