Special Report

Settled Law

Monday was a dark day for those who believe that all men are created equal and that the Constitution is color-blind.

By 6.26.03

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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.

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About the Author

Tracy Robinson is a 2004 graduate of the George Mason University School of Law.