Secrecy and Dishonesty: The Supreme Court, Racial Preferences, and Higher Education
Thernstrom, Abigail, Thernstrom, Stephan, Constitutional Commentary
One should never count on the U.S. Supreme Court to think and write clearly--or even to tell the whole truth and nothing but. Its most famous decisions involving racial equality in the last half century, starting with Brown v. Board of Education, (1) are, to put it delicately, a mess. Brown barely qualified as constitutional reasoning, although the bottom line was certainly right. In The University of California v. Bakke (2) the Court turned what should have been an easy question into an agonizing one, the result being a dizzying six different opinions. And the majority opinions in Gratz v. Bollinger (3) and Grutter v. Bolinger (4) managed to wade deeper into the constitutional muck, although that hardly seemed possible beforehand.
Maybe the Court in Brown could not have done better than it did--given the need for unanimity--but Chief Justice Earl Warren's opinion is certainly thin, flimsy, and frustrating. The Fourteenth Amendment is almost missing in action. The Court relied instead on "psychological knowledge"--mainly the flawed self-esteem research of Dr. Kenneth Clark. And the decision reaffirmed the central holding in Plessy v. Ferguson (5)--namely, that it was up to judges to weigh (by often unclear standards) the costs and benefits of policies that engage in the racial sorting of American citizens. Racial classifications were not prohibited. Every constitutional law textbook contains some reference to the soaring rhetoric of Justice John Marshall Harlan's dissent in Plessy, but that dissent was the radical moral vision of a man who has remained a voice in the constitutional wilderness. (6)
Justice Lewis Powell's decisive opinion in Bakke--an opinion in which four other Justices joined only in part--depicted the Court's role as discerning principles, noted that racial classifications must be "precisely tailored to serve a compelling governmental interest," (7) and then labeled a "diverse student body" (8) as an aim that met the "compelling" interest standard. Racial quotas, however, were unacceptable. In its quest for "diversity," a school could use racial identity only as a "plus" factor, (9) one consideration among many. And while Justice Brennan (joined by Justices White, Marshall, and Blackmun) argued that "race-conscious action" (10) was required to remedy "the lingering effects of past societal discrimination," (11) Powell rejected that "amorphous concept of injury," which, he said, "may be ageless in its reach into the past." (12)
"Diversity" was evidently more precise or more principled, in Powell's view. But no other Justice signed on to his reasoning. Five Justices (Powell plus the Brennan four) did agree, however, that both the Constitution and Title VI of the 1964 Civil Rights Act permitted race-conscious policies--benefits and burdens attached to individuals on the basis of the color of their skin.
Allan Bakke won, the University of California lost, and yet the decision gave constitutional legitimacy to preferential admissions policies. The Court had drawn an allegedly principled line between the permissible (race as a "plus" factor) and impermissible (race as decisive) that was meaningless in practice. If race was in the mix, then race was inevitably decisive. Michael Kinsley has put the point well. "Admission to a prestige institution ...," he has written, "is what computer types call a "binary" decision. It's yes or no. You're in or you're out.... The effect of any factor in that decision is also binary. It either changes the result or it doesn't. It makes all the difference or it makes none at all. Those are the only possibilities." (13)
Powell's diversity rationale allowed race to make "all the difference." And thus, twenty-five years later in Gratz v. Bollinger, the Court was once again confronted with the problem of race-driven admissions--precisely the admissions process that Powell had found unacceptable. For all the trouble to which the Bakke Court went, with Justices crafting intricate opinions that amounted to a riot of constitutional confusion, those off the bench, sifting through applications at the University of Michigan and elsewhere, read between the lines and understood that five Justices had signed on to racial double-standards in the admissions process. …