By Drinan, Robert F.
National Catholic Reporter , Vol. 39, No. 34
The nation seemed stunned by the Supreme Court decisions in late June on affirmative action and gay rights. On further analysis these rulings were somewhat predictable and not as far-reaching as they may have first appeared.
In the two cases from the University of Michigan, the court by a 5 to 4 majority ratified policies on integration that the military, academia and business have followed in the years before and after the Bakke decision in 1978. Indeed, the military has employed affirmative action to become the most integrated institution in America. The Pentagon brief in favor of the Michigan Law School plan had a clear and convincing impact on the court.
In fact, it is hard to conceive the Supreme Court wiping out all of the victories that American society has achieved by reaching out to people of color. The argument of the minority on the court that race may never be taken into account seems to be in conflict with the whole thrust of American law since the Civil Rights Act of 1964.
The court suggested that another 25 years of affirmative action will not be necessary. That hope will not be realized until the government changes the present situation mentioned only by Justice Ruth Bader Ginsburg. She noted that 71.6 percent of African-American children go to primary and secondary schools where the majority of the students are persons of color. The test scores in these schools are depressingly below the medians in predominantly white schools in the same community.
But the affirmative action sustained at the University of Michigan Law School is open to challenge. The dissent of Justice Anthony Kennedy is persuasive in pointing out the imperfections and, yes, the dangers of allowing race-conscious remedies.
The decision, moreover, is not entirely clear. It states that every applicant to law school deserves a review of his or her application that is "holistic." That word, in the opinion of Justice Sandra Day O'Connor, may be the next point of controversy when an application is denied.
The worlds of education, business and the military are relieved; their briefs had a decisive impact on the court. But the self-appointed organizations opposed to all affirmative action will continue to be boisterous and well-financed with a simplistic argument against the use of anything related to race.
Can some new or old groups persuade legislators and/or judges that racially impacted or predominantly black schools deny true equality to the white and the black students who attend them?
Meanwhile, the court's 6-3 decision invalidating a Texas statute punishing gays for conduct that heterosexual individuals would not be penalized for can be construed as a narrow ruling. But can it be cabined? Even to ask that question suggests, some gays would assert, a certain bias against gays.
The next battleground is the military. …