A correspondent has pointed out that I may have overstated in a recent post the change in the Administration’s position regarding diversity in the University of Michigan cases. I suggested that at first the Administration had intended to challenge the idea of the educational benefits of diversity until then-White House Counsel Alberto Gonzales intervened. My source was Harry Stein’s article from the Autumn 2006 City Journal, “Now the GOP is for Affirmative Action?.” My correspondent asserts that all this article indicates is that the Administration was considering challenging the idea of diversity as a compelling state interest, not the idea of diversity as carrying educational benefits. (For me the two seem intertwined.) Here is the relevant section of Stein’s article:
For preference foes, the Supreme Court battle was a disappointment in another crucial respect: it signaled the Bush administration’s abandonment of the cause. True, the administration, acting ostensibly on behalf of Gratz and the others unfairly denied admission to the university, submitted two amicus curiae briefs to the court, arguing that the University of Michigan’s quota-based admissions system was “plainly unconstitutional.” But the briefs also provided key fodder for the other side by agreeing that “diversity,” that vague feel-good catchall that liberals have enshrined as a primary good, “is an important and entirely legitimate government objective.”
As journalist Christopher Caldwell noted at the time, “The Bush memos are the most important substantive defense of affirmative action ever issued by a sitting president. If the Court accepts the president’s reasoning, it will have rescued affirmative action from what appeared to be a terminal constitutional illogic. More than that—it will have secured for this rickety program an indefinite constitutional legitimacy.” Caldwell proved prescient, the administration’s “diversity” argument being precisely the one that Justice Sandra Day O’Connor cited for her pivotal vote in the 5–4 decision. “Effective participation by members of all racial and ethnic groups in the civil life of our nation is essential if the dream of one nation, indivisible, is to be realized,” O’Connor declared, writing for the majority.
Opinion divides on the anti-preferences side about who bears the greatest responsibility for the administration’s revised affirmative-action stance. According to Terrence Pell, lead attorney for the Center for Individual Rights, which represented the plaintiffs in the U-M cases, “We’d been assured the Justice Department was going to take a strong position that diversity was not a compelling interest and that [then–solicitor general] Ted Olson’s shop had already written a brief taking on the diversity rationale. But this started a huge fight and [White House counsel] Alberto Gonzales put his foot down and forced the change in direction.”