Breaking and associated brands will be offline for scheduled maintenance Saturday May 8 3 AM US EST to 12 PM EST. We apologize for the inconvenience.


Thank you for sharing!

Your article was successfully shared with the contacts you provided.
For those who stubbornly cling to the elder Justice John Marshall Harlan’s conviction that “our Constitution is color-blind, and neither knows nor tolerates classes among citizens,” the Supreme Court’s twin decisions in the University of Michigan cases were more than disappointing. They were catastrophic. A majority of justices have now embraced the view, once held only by Justice Lewis Powell Jr., that “diversity” is a compelling state interest justifying racial discrimination. In striking down Michigan’s numerical undergraduate program ( Gratz v. Bollinger) while affirming its more “nuanced” law school program ( Grutter v. Bollinger), the Court ensured that all future racial schemes will be subtle, subjective, and difficult to trace. Finally, the majority eviscerated the requirement that discriminatory remedies be time-limited. Instead, in language so casual it borders on glib, Justice Sandra Day O’Connor speculated that perhaps 25 more years might be necessary, and perhaps not. Two days after the Michigan decisions, the Supreme Court overturned Bowers v. Hardwick (1986), thus proving that the Court is capable of acknowledging its mistakes and correcting them. Good. It should do so again, and soon. RACIALIST BLOWOUT Under the Court’s new “diversity” formulation, state educational institutions have the right to discriminate to achieve some vague, never-quantified “critical mass” of minority representation. A student body composed entirely of math geeks from middle-class suburbia would qualify as “diverse,” provided only that enough were of different skin color. Conversely, in the absence of that mysterious “critical mass,” a student body containing significant numbers of socialists and capitalists, pro-life and pro-choice activists, children of Appalachia and children of Bel Air, would fail to qualify as “diverse.” Since skin color is all that matters to the Court’s concept of diversity, one has to wonder how institutions will apply the critical-mass test in the face of growing levels of intermarriage. Michigan’s law school argued that 150 minority students was the bottom of its critical-mass range. Now consider filling that range with hypothetical applications from Clarence Thomas, the son of black parents, and Lani Guinier, the daughter of a black father and a white mother. One would seemingly provide double the diversity of the other. In the strange mathematics of racialist jurisprudence, Michigan might have to admit 300 Guiniers to attain the same quantum of diversity achieved by 150 Thomases. Some opponents of racial discrimination have taken comfort from the fact that the Court struck down Michigan’s undergraduate program, which awarded 20 points (out of 100 needed for admission) to applicants belonging to recognized minority groups. But the two programs differed only in candor. While one used race openly, the other used it as part of a “highly individualized, holistic review.” For proponents of racial preferences, the principal advantage of the law school program was obfuscation. Most people could understand that the undergraduate program was tantamount to starting some applicants at the 20-yard line in a 100-yard dash. But no one, including the nine justices, really understood the law school’s “highly individualized, holistic” approach to discrimination. That was the whole point. Shrouded in mystery, the law school program accomplishes the same end as the undergraduate program without arousing the same revulsion. For opponents of preferences, the decision to strike down the undergraduate program was a tactical defeat, depriving them of a stark illustration of the consequences of the other side’s principles. Justice Antonin Scalia’s reference to a “split double header” was inaccurate. The Michigan decisions represented a racialist blowout. All of this might have been tolerable had the majority reaffirmed its allegiance to the doctrine of limited time. In the rare instances in the past when the Court permitted racially conscious remedies, it generally noted their limited duration. But Michigan’s law school made no attempt to show that its remedies were time-limited, and Justice O’Connor did not press the issue. She merely expressed the expectation (which Justice Ruth Bader Ginsburg stressed was a hope, not a forecast) that 25 years would suffice to sunset the program. We have already had one generation since Regents of University of California v. Bakke (1978), and now Justice O’Connor promises another. In fact, none of the programs employed by Michigan and other elite educational institutions attack the core problem: the shortage of qualified minority applicants. All they do is set the rules by which these institutions may compete for the limited supply. By suggesting that such programs may be used as long as the core problem remains, Justice O’Connor was signing off on a permanent regime of racial preferences. What is to be done? For those who see racial preferences as morally wrong, counterproductive, or both, the first thing is to recognize what has happened. When Neville Chamberlain returned from Munich promising “peace in our time,” Winston Churchill did not waste time rationalizing. He told the citizenry, “We have sustained a total and unmitigated defeat.” Churchill realized that his countrymen needed bracing honesty, not comfort, to face the trials ahead. We do too. Which is why it was disappointing to see the White House Rumpelstiltskins try to spin straw into gold. “I applaud the Supreme Court for recognizing the value of diversity on our Nation’s campuses,” stated President George W. Bush in a press release issued shortly after the decisions were handed down. “Diversity is one of America’s greatest strengths. Today’s decisions seek a careful balance between the goal of campus diversity and the fundamental principle of equal treatment under the law.” The statement did not try to reconcile the president’s “applause” with the inconvenient fact that the Court had squarely rejected the arguments advanced by the president’s attorney, Solicitor General Theodore Olson. Orrin Hatch, the Republican chair of the Senate Judiciary Committee and a man once touted as a possible Supreme Court nominee, also hailed the decisions as a “victory.” At least one Democrat agreed that they were a victory for Bush. Susan Estrich, a law professor at the University of Southern California, so characterized the decisions because they assured that affirmative action will not be an issue in the 2004 elections. Estrich managed the campaign of Michael Dukakis, so her political acumen is subject to question. Like many other Democrats, and apparently like the White House, too, she assumes that a noisy debate over racial preferences would hurt the president’s prospects. A WINNING ARGUMENT The truth is the opposite. The day after the Court announced its decisions, a Gallup poll found that a slight majority of Americans (49 percent to 43 percent) favor “affirmative action.” This is not surprising since “affirmative action” is a broad term encompassing many elements — such as outreach — that do not involve imposing different standards for different races. Getting down to specifics, the poll asked whether college applicants “should be admitted solely on the basis of merit, even if that results in few minority students being admitted.” By a whopping majority (69 percent to 27 percent), the public answered yes. Skeptics might say that even if the public overwhelmingly rejects racial preferences, they will still turn against Bush if they perceive him as unfriendly toward minorities. But the Gallup poll shows that a colorblind platform will actually help the president win minority voters. By a decisive majority (59 percent to 36 percent), Hispanics favored a merit-only process over one that considers race and ethnicity. Among blacks, the presumed main beneficiaries of such programs, the numbers were close: 44 percent favored the merit-only approach, 49 percent favored taking race into account. Although this shows slight plurality support for preferences among blacks, it is a far cry from the kind of uniform support assumed by pundits of both parties. In fact, color-blindness is far more popular among black voters than Republicans are. No Republican presidential candidate in modern history has come close to garnering 44 percent support from black voters. (George W. Bush won about 8 percent.) Voters are smart. Any candidate perceived as pandering to residual white bigotry is likely to fare poorly, not just with minorities but with white progressives as well. But a Republican candidate running as a principled opponent of preferences would be running on the right side of history. He would likely gain, not lose, minority support. If the White House is serious about opposing racial preferences in favor of race-neutral solutions, it will not hesitate to make the Michigan decisions a campaign issue in 2004, notwithstanding its earlier press statement. Taking heart from Lawrence v. Texas, in which the Court acknowledged its mistake of 17 years ago and struck down a state statute criminalizing private consensual homosexual activity, the Bush campaign should call for a Supreme Court composed of justices who will correct the mistake in the Michigan cases. The president should vow to appoint to any high court vacancy only those jurists who will support race-neutral standards. He should campaign for Senate candidates who will vow to confirm such nominees, and he should campaign against candidates who will not. Is this a litmus test? Well, yes. Democratic presidential candidates have imposed the same kind of test on the abortion issue. Agree with them or not, one has to admire their sense of moral certainty. This same kind of moral certainty, articulated and advanced by the top of the Republican ticket, will be required to avoid 25 more years of government-sponsored racialism. Lawrence J. Siskind of San Francisco’s Harvey Siskind Jacobs specializes in intellectual property law. A longer version of this article appeared in the July 11 issue of The Recorder, the American Lawyer Media newspaper in San Francisco.

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]

Reprints & Licensing
Mentioned in a story?

License our industry-leading legal content to extend your thought leadership and build your brand.


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.