The bad news from the Supreme Court this week in its decisions in the pair of University of Michigan admissions cases is very bad indeed. Just how bad it is has yet to register with many people. The liberal press has spun the Court’s decisions as a vindication of affirmative action, but a moderate one that says no to quotas and foresees a time when race will no longer need to be a factor in college admissions. In general, the liberal press has portrayed the Court’s actions as a vote for the status quo and a rebuke to the hotheads who unrealistically wanted America to vault beyond racial categorizations while they are still needed to correct long-standing inequities.
This reading of the decisions in Grutter and Gratz is deeply mistaken. Justice O’Connor’s opinion for the five-member majority in Grutter (the law-school admissions case) declares that, “Today, we hold that the Law School has a compelling interest in attaining a diverse student body.” Chief Justice Rehnquist’s opinion for the six-member majority in Gratz (the undergraduate-admissions case) defers to O’Connor’s opinion on this point. The University of Michigan’s undergraduate-admissions policy was struck down on the technical grounds that it was not “narrowly tailored,” but Rehnquist bows to the Court’s majority that “diversity” is indeed a compelling state interest.
Repeat: Diversity is a compelling state interest. In these mild words the Supreme Court has effectively amended the U.S. Constitution. We now live in a nation where the highest court has endorsed the principle of group rights. The “diversity” in question is the idea that Americans are properly seen in relation to each other as members of racial and ethnic groups, and not as individuals who have equal rights before the law. The word “diversity” continues to ring in ears of many Americans as though it were a simple description of the way we are: people of diverse ancestry and a variety of cultural traditions. But that is not what “diversity” means to the administrators at the University of Michigan, or to diversity’s academic advocates around the country, and it is clearly not the “diversity” that Sandra Day O’Connor just wrote into the Constitution.
You can tell it isn’t that kind of diversity because of the authorities that Justice O’Connor cites in her opinion. We know diversity is good, she explains, because it has educational benefits. It makes us smarter and it makes us better. The evidence? She cites “numerous studies” including William Bowen’s Derek Bok’s book, The Shape of the River, Gary Orfield’s and Michal Kurlaender’s Diversity Challenged, and a new compilation, Compelling Interest, by Chang, Witt, Jones, and Hakuta. Safe to say that most of the journalists reporting on the case haven’t read these tomes. But I have. And if these books represent the quality of scholarship and the depth of thinking that informed the Court’s deliberations, woe to us.
What O’Connor’s citation of these books means, superficially, is just that she has uncritically accepted the conventional views of the Leftist establishment in higher education. If anyone is disposed for a little irony at the end of O’Connor’s banquet, here is an after dinner mint: The Left’s term for uncritically accepting its conventional wisdom on race is “critical thinking.” O’Connor just showed herself a master of “critical thinking.”
But citations, like all other actions, have consequences that may well go beyond what the citer intended. When O’Connor scooped up Bowen, Bok, Orfield, and the others as intellectual justifications for saying that diversity is a compelling state interest, she gave force and legitimacy to the diversity doctrine preached by these writers. She gave us, in other words, a version of diversity that is not the rainbows, quilts, and boxes of crayons we-are-all-one-family diversity of the kindergarten, but the 120-proof rot-gut diversity of the ideologues. These are the folks who see America as endemically racist and the racism to be thoroughly institutional; the folks who see a moral imperative in classifying all Americans by race, and then ranking the classified groups by degree of historic victimization; and the folks who want to divvy up all social goods and distribute them proportionally to the victim groups according to a hierarchy of victimization. And, of course, these are the folks who see themselves as uniquely qualified to make those judgment calls over who is worthy of the privileges of victimization and who isn’t. (Daughter of wealthy African-American physician — in; daughter of impoverished Armenian immigrant — out, etc.).
Perhaps I am overstating the case. Maybe American common sense will prevail over the lunacies that O’Connor has invited in to the Constitution. I am not, by temperament, an alarmist and I feel out of character in taking alarm when so much of the nation is taking these decisions in stride. But I do feel alarm.
25 years ago, when Justice Louis Powell speculated in his opinion in the Bakke case about how universities might justify a limited use of racial preferences, no one foresaw the generation-long elaboration of his ideas about “diversity” into a doctrine that would justify racial-theme dormitories, separate minority graduation ceremonies, revamping of whole curricula to make college for diversity-friendly; the attack on the SATs and other standardized tests as an impediment to diversity; and the pro-diversity litmus tests in the hiring of college administrators. In the world of universities, diversity became an encompassing and almost totalitarian doctrine, and then it began to spread — to business, the arts, the churches, and virtually everywhere. The popular-culture version of diversity spread everywhere — and all this despite the fact that the idea had no legal authority behind it.
O’Connor now has supplied that lack. Diversity is the legitimate law of the land. I can’t help but think that the transformation of America into a regime of group rights has only just begun. The danger of hereditary groups pursuing their interests as organized factions — the danger that so worried Madison and that deeply informs our Constitution — has been waved away by the Court. Don’t worry, the Court says, we can have the benefits of racial categorization to correct our inequities, and then we will retire those categorizations in 25 years or so when they are no longer needed. But factions are interest groups, which are not known for fading away when you supply them with government incentives. No, the social divisions of diversity are here to stay, along with their inherent nastiness.
This Court has fertilized and watered the seeds of discord. We are going to see at least a generation more of people mis-defining themselves as members of groups rather than as individuals, and the groups themselves competing ever more viciously for the spoils. And that’s where we are. The Court has not upheld affirmative action. Rather, it has legitimated the politics of racial and identity-group faction.
— Peter Wood is author of Diversity: The Invention of A Concept.