Tuesday, October 10, 2006

Compelling Nonsense

Carl Cohen, a professor of philosophy to the University of Michigan, has sent a letter to the president at his university that harshly criticizes its defense of "affirmative action" (meaning, in this context, the assignment of credit for tribal background to some applicants on grounds of "diversity"). He also approvingly mentions an initiative on this fall’s ballot in Michigan that would ban state racial preferences (similar to measures that have been passed in several other states). Here are some excerpts:

Justice Powell, alone among the nine justices of the Supreme Court, had suggested (in Regents v. Bakke, 1978) that diversity in enrollment might serve as constitutional support for race preference. A Supreme Court majority of five (in Grutter v. Bollinger, 2003) followed him, registering its acceptance of some race preferences because they met an alleged "compelling need" for a "critical mass" of students in each of three ethnic minorities.

That the diversity defense is no more than a stratagem is made manifest by the history of this controversy. Diversity was hardly ever mentioned until the compensatory justification was thrown out by the courts. The evidence in the Michigan cases (Grutter and Gratz) exposes and highlights the ruse. If a "critical mass" of minority students (what was claimed to be a compelling need) in the black minority requires, let us say, 50 blacks among the incoming law school class, how can it be that only 25 are needed for a critical mass of Hispanics? And only five for a critical mass of Native Americans! Candor compels the admission that all our talk about using preference to achieve a "critical mass" of students in each minority for the sake of educational excellence is - in the words of four members of our Supreme Court - a "sham." It is a device, the only device available with which we can continue to satisfy the inner compulsions of white guilt.

I ask you to reflect. Can an increase in the number of certain racial minorities in the Law School entering class be a truly "compelling" need for the state of Michigan? Think about that claim. It is nothing short of preposterous. Some states in our country, Massachusetts and others, do not even have a state-supported law school. Can the racial makeup of the entering law school class at the University be compelling while in other healthy states such a class does not even exist?

The judicial framework for every type of race-based preferential treatment by the state – in university admissions, particularly – is astonishingly fragile. Contrary to popular belief, "diversity" has never been unanimously accepted as a justification for such treatment. The most important Supreme Court precedent on affirmative action (outright quotas in that case, which the Court threw out) is University of California Regents v. Bakke. In that case, four justices were willing to grant substantial deference to the University in using "race" as a factor in determining who gets into medical school and who doesn't. They argued essentially that our racial history was so bad that some whites would have to suffer in the attempt to make up for it. Justice Lewis Powell was unwilling to go that far, but was the only justice to even argue that "diversity" was a compelling interest that justified violating constitutional guarantees of equal protection of the laws. The word "diversity" appears neither in the dissent (by four justices of the left) nor in the concurrence (which agreed that the petitioner Mr. Bakke should be admitted but argued that any use of race violated the civil rights laws). Because Justice Powell's opinion was intermediate between the concurrence and in the dissent, it became the controlling one, despite diversity's utter unimportance in the views of the other eight justices.

The whole legal justification of "diversity" as a ground for discrimination in admissions thus hangs on the opinion of one man. Putting even more weight on this already fragile foundation, Sandra Day O’Connor was forced in her controlling opinion in Grutter v. Bollinger in 2003 (which upheld the use of race in law school admissions on the same day that a separate opinion invalidated a similar plan for undergraduates at the same university) to assert that "[w]e expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today."

The Constitution, needless to say, says nothing about whether unequal treatment on racial grounds is okay for a certain period of time until certain objectives have been achieved. Either affirmative action is constitutional or is not. But because the jurisprudence is so arbitrary (with a constant majority of the court clearly wanting to uphold affirmative action, and yet having such a hard time reconciling it with the Constitution), and so obviously impinges on the prerogatives of the legislature, that we are now well into a period in which the nine justices must constantly arbitrate the increasingly arcane boundaries between constitutionally permissible and impermissible use of race in handing out government advantage.

Professor Cohen has advanced the discussion by (unavoidably) accepting the abstract proposition that diversity is a compelling state interest ("compelling" interests justifying more constitutional shenanigans than mere "rational-basis" ones), but that law school diversity per se is not such an interest. Justice Powell forces him to take that route, but implicit in his argument is the question of whether any educational diversity is really "compelling" in the same sense that, for example, preventing the press from reporting on troop movements during wartime despite the existence of the First Amendment is. This is the kind of thing that "compelling" is supposed to mean, but the increasing torture of the word to justify affirmative action in the increasingly constitutionally narrow space that it has to roam in is becoming more and more untenable. Professor Cohen should be commended for advancing the discussion in this way. Everyone concerned about the increasing incoherence of the interpretation of the Constitution on this issue should read the whole thing.

The Chronicle of Higher Education reports that many higher-education pressure groups are filing briefs with the Supreme Court in support of the efforts of several public schools (at the pre-college level) to maintain their ability to use race in admissions decisions. So this is far from a purely Michigan problem.


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