A web still tangled on affirmative action
"In order to get beyond racism, we must first take account of race."
-- Justice Harry Blackmun, 1978
"The way to stop discrimination on the basis of race is to stop discriminating on the basis of race."
-- Chief Justice John Roberts, 2007
Blackmun was concurring in the Bakke decision, which created the higher education "diversity" exception to the equal protection principle: Racial preferences in admissions to a public university do not violate the principle of equal protection of the law if they serve the supposedly compelling interest of achieving the educational benefits of a diverse student body.
Twenty-five years later, in a 2003 case upholding the constitutionality of racial preferences in admissions to a state law school, Justice Sandra Day O'Connor declared -- citing no data or other reasons -- that in 25 more years preferences would be unnecessary. What Blackmun did not anticipate, and O'Connor did not appreciate, is that the diversity rationale for racial preferences appeals to the diversity industry in academia precisely because it makes no reference to compensation for prior injustices. Therefore it does not aim to "get beyond" race.
Tinkering with diversity in a student body could, the court said in Bakke, be regarded as a First Amendment right -- the exercise of academic freedom. So, the court's acceptance of a "compelling" government interest in diversity, and of an educational institution's entitlement to deference in defining diversity, was a license for universities to base actions on race forever.
Liberals abhor stereotyping but say minorities necessarily make distinctive -- stereotypical? -- contributions to viewpoint diversity, benefiting campuses forever. Campus conservatives know how much liberal academics hunger for viewpoint diversity.
As condign punishment for the wrong turn it took in Bakke, the court has been entangled for 35 years in a thicket of preferences that are not remedial and hence are not temporary. Preferences as recompense for past discrimination must eventually become implausible; the diversity rationale for preferences is immortal. And litigation about it will continue longer than forever.
On Monday, the Supreme Court thrashed around in the thicket it has cultivated and fertilized for more than three decades. In a case coming from the University of Texas at Austin, it instructed a lower court to square this circle:
Because the 14th Amendment guarantees "equal protection of the laws," universities wishing to ignore that guarantee in order to use racial classifications in admissions must be accorded "some" deference in their exercise of academic freedom. But the court thinks suspensions of constitutional guarantees are kind of important, so the court has decided to pretend that the guarantee is somehow not really being truncated. So an academic institution's use of race must withstand "strict scrutiny," meaning it must be narrowly tailored to achieve a compelling government interest.
What a tangled web the court weaves when first it practices to deceive itself about what it is doing to the equal protection guarantee. The 14th Amendment stops guaranteeing equal protection when the court defers to the "experience and expertise" of public universities in fine-tuning the racial and ethnic compositions of their student bodies in order to attain a "critical mass" of certain government-approved minorities.
In 2008, Abigail Fisher, who is white, was denied admission to the University of Texas under a baroque process the university has evolved in an attempt to make taking some account of race compatible with court's rulings regarding racial preferences. These rulings have said, among much else, that race or ethnicity must not be the "defining feature" of a student's application.
The Supreme Court said on Monday that the Fifth Circuit was too deferential to the university: The lower court did not properly apply strict scrutiny to judging whether the university's use of race was sufficiently narrowly tailored. This clarified the fact that clarity is incompatible with the Supreme Court's prior decisions carving out a higher education exemption from the Constitution's marvelously clear guarantee of equal protection of the laws.
In an opinion concurring with the majority's conclusion that strict scrutiny was required but not applied to Texas' use of race, Justice Clarence Thomas says of "racial engineering": There is no compelling governmental interest in whatever educational benefits supposedly flow from racial diversity that must be achieved by racial discrimination. Thomas should tell the chief justice that the way to stop discrimination on the basis of race is to stop pretending that strict scrutiny of such discrimination somehow makes it something other than what it is.
George Will's email address is email@example.com.