Although conservative activists tried to save face this week by
claiming victory in the battle against racial preferences with the
ruling in Gratz v.
Bollinger, it was hard to deny that they lost the war in the
companion case, Grutter v.
Bollinger. In Gratz, the Supreme Court struck down the
University of Michigan’s infamous undergraduate admissions system
in which minority applicants were awarded 20 points toward the 100
required for admission. The Court held that, by acting as an
automatic and inflexible racial preference, the program violated
the Fourteenth Amendment’s guarantee of equal protection of the
laws.
In Grutter, however, the Court handed an enormous
victory to supporters of affirmative action by ruling that
government programs may discriminate based on race for the sake of
“diversity.” Until Grutter, government could
constitutionally consider race only for reasons of national
security or to correct prior state discrimination.
The four dissenters in Grutter were extremely skeptical
of the diversity rationale. Chief Justice Rehnquist focused on
Michigan’s goal of obtaining a “critical mass” of minority law
students, correctly calling this goal unconstitutional racial
balancing and a “sham.” Justice Kennedy said diversity was a
“delusion used by the Law School to mask its attempt to make race
an automatic factor [in favor of admission] in most instances” and
pointed out that the critical mass goals were merely quotas with
another name. Justice Scalia said Michigan’s rationale for using
racial preferences “challenges even the most gullible mind,” and
Justice Thomas referred to diversity as a “faddish slogan of the
cognoscenti.”
Instead of skeptically examining Michigan’s use of race in
admissions, as is traditionally required in Fourteenth Amendment
cases, the majority deferred to the law school’s claims that the
policy is necessary and has substantial educational benefits.
Social scientists may not be in agreement about these nebulous
benefits, but the Court did not care, giving the law school the
benefit of every doubt.
In the limited instances in the past in which the Court has
allowed government to classify citizens based on race, the law has
required such programs to have explicit time limits or sunset
provisions. This is to ensure that racial discrimination does not
become the norm. In Grutter, however, the Court did not
require Michigan to have any concrete ending goal or date for its
program. Instead, the Court predicted that “the use of racial
preferences will no longer be necessary” to further diversity in
higher education in 25 years. This statement was not a holding of
law, merely an aspiration of the five-justice majority.
But no matter how much the Court hopes that affirmative action
programs at schools and employers will fade away over the next
generation, its holding virtually guarantees that will not happen.
Now that the Court has clearly said that diversity is an acceptable
reason for the government to classify citizens based on race, the
issue is settled. Lawsuits will likely be filed challenging the
admissions programs at specific schools or over affirmative action
programs used by government contractors, but this will be quibbling
over the details. If the issue of affirmative action becomes more
politically charged, as it did in California with Ward Connerly’s
Proposition 209, Democrats in Congress will bar anti-affirmative
action judges from Supreme Court vacancies. Just as judges are
questioned before the Senate Judiciary Committee on their
willingness to uphold Roe v. Wade, they could be
questioned on whether they believe Grutter is a
well-reasoned decision, and whether they will uphold it as settled
law.
Monday was a dark day for those who believe that all men are
created equal and that the Constitution is color-blind. Affirmative
action is here to stay.
