The United States Supreme Court has been asked to rule that the continuing use of race as a factor in the consideration of college applicants violates the 14th Amendment to the U.S. Constitution and the Civil Rights Act of 1964. Having whiffed on this question for more than half a century, the justices should take the opportunity they have been afforded and put the matter to bed.
Making his case for the plaintiffs, Patrick Strawbridge told the nine justices that the Supreme Court’s last major foray into this area, 2003’s Grutter v. Bollinger, was “egregiously wrong.” “Racial classifications are necessarily invidious,” Strawbridge proposed, and Grutter’s toleration of them represented a “glaring exception” to the Court’s other jurisprudence. Moreover, Grutter isn’t even being followed. Nineteen years ago, Strawbridge recalled, a majority of the Court’s justices signed on to an opinion that explicitly “forecast” the “demise” of affirmative action — and yet it persists “in perpetuity.” In that case, Sandra Day O’Connor wrote that affirmative action was legal if, “in the context of . . . individualized inquiry into the possible diversity contributions of all applicants,” the aim was to produce “the educational benefits that flow from a diverse student body,” before adding preposterously that “race-conscious admissions policies must be limited in time” and the Court expects that “25 years from now, the use of racial preferences will no longer be necessary.” Well, then?
Despite his best efforts, the attorney for the University North Carolina could not explain why O’Connor’s timetable was wrong — or, for that matter, why it was right. He agreed with Justice Barrett that affirmative action was dangerous and must be time-limited as a result. But he assured the Court that the time to end it was not now. When would it be? He couldn’t say. By what metric would the correct moment be discerned? He couldn’t say. At what point would the underrepresentation of minorities become acceptable? He couldn’t say. Who counts as a minority, anyway? He couldn’t say. Justice Gorsuch asked him if diversity was important; he said it was, but that diversity was more than just counting numbers. Justice Alito asked how that made any sense: If diversity is imperative, Alito suggested, then there’ll always be a need to ensure that it’s being achieved — and if it’s not being achieved, and if affirmative action is the only way to remedy that deficiency, as was being insisted then . . . ?
He couldn’t say.
As is their wont, the progressive justices seemed more interested in the policy implications of affirmative action than in its legality. At one point, Elena Kagan insisted that it mattered whether “our institutions look like America,” and asked whether it would be acceptable if minority enrollment was diminished by the Court’s decision. But this, of course, was irrelevant to the question at hand, which was whether Clarence Thomas was correct to suggest in Fisher v. University of Texas at Austin that the law “does not pander to faddish theories about whether race mixing is in the public interest.” If he was, the judicial branch’s inquiry must end there. If he wasn’t, then the policy choices that each university makes are none of the Court’s business. Eventually, Clarence Thomas cut through the noise. “I’ve heard the word ‘diversity’ quite a few times,” he said, “and I don’t have a clue what it means. It seems to mean everything for everyone.” When he was told that diversity improves outcomes in the classroom, he said simply that he had “heard similar arguments in favor of segregation.” Indeed.