Academic journal article
By Alexander, Larry; Schwarzschild, Maimon
Constitutional Commentary , Vol. 21, No. 1
The Supreme Court decisions on affirmative action have arrived. (1) They are dubious as constitutional law, bringing to mind what John Hart Ely said of Roe v. Wade: "it is not constitutional law and gives almost no sense of an obligation to try to be." (2) Yet because the cases were about whether affirmative action is permissible, not whether it is required, the salient question--now more than ever--is whether preferential affirmative action is a good thing. At least in higher education, we will suggest, there is overwhelming reason to think it is not.
The outcome of the Supreme Court cases should perhaps have been no surprise. The set-up was perfect for Justice O'Connor, who has made something of a career of being the Court's swing voter, and who has a penchant for opinions that split unsplittable babies. (3) The University of Michigan's two racial preference admissions schemes--the undergraduate school's crude "20 points if you're a minority," (4) and the law school's allegedly holistic "how does each person contribute to an educationally-enriching diverse student body?" (5)--were perfect for O'Connor's rejection of transparent racial goals and endorsement of disingenuous ones. (6) As is fairly widely recognized, the law school's scheme is dishonest because it is not what it is billed to be, namely, a holistic, individual assessment of applicants, conducted with an eye to the quality of the educational environment: rather, it is like the undergraduate system, a plan that is about meeting goals for racial representation. Educational benefits are doubtful and, in fact, largely window dressing driven by language in Justice Powell's opinion in Bakke (7). As for the "holistic" individual assessments, they always seem to produce something very close to a particular percentage of particular minorities. Nor is there ever any question of ensuring "critical masses" of, say, farm children, Appalachians, evangelical Christians, or ex-businessmen/businesswomen, all of whom might contribute to legal education as much as or more than people identified by their race. Justice O'Connor presumably knows all this, although she pretended not to.
The finding that Michigan's interest in maintaining an elite law school is a compelling interest sufficient to justify a racial classification is utterly inconsistent with the Court's suspect-classification/compelling-interest jurisprudence now extending back over many decades. Are the "means"--racial preferences-really "necessary" to ensure that the law school will be of elite quality? In California there are several public law schools, generally conceded to be among the most elite in the country, which are forbidden by the state constitution to indulge in racial preferences. As for "diversity" as a "compelling interest," imagine a state government's plan to "diversify" some heavily minority branch of state government by giving preferences to whites. Does anyone believe Justice O'Connor would uphold those? (8)
The compelling interest test for racial classifications is dead--at least in this case.
What Justice O'Connor's opinion amounts to is that if universities can disguise their admissions systems so that it is not too blindingly obvious that they are pursuing racial representation for its own sake, they can get away with it, although they are admonished that using race as a criterion is a dirty business and that they should try their hardest to eliminate it by, say, 2028. If "strict scrutiny" of racial classifications has to be diluted or denatured in order to uphold the plan, then so be it, although the Court will claim not to be doing so. And after all, perhaps diversity is a compelling interest. Look at all the amicus briefs from corporate America saying that it is. (9)
Whether or not the Supreme Court should have held racial preferences by the government to be unconstitutional, what seems clear to us is that the culture of racial preferences in higher education has proved very bad as a matter of policy. …