In racial matters, good news from the Supreme Court is generally no news. Since at least the mid-1970s, the Court has been mostly inhospitable to those seeking to advance progressive racial policies through litigation. That is why civil-rights activists often deliberately keep potentially far-reaching cases away from the High Court. In a revealing episode in 1997, for example, the NAACP Legal Defense Fund and other organizations, rather than risk an adverse judgment by the justices, pooled hundreds of thousands of dollars to pay the settlement costs demanded by a white schoolteacher who had initiated a reverse-discrimination lawsuit.
There was a time when Congress could be a counterweight to the Court's rollbacks. In the early 1980s, when the Supreme Court narrowed its previous interpretation of the 15th Amendment's prohibition against racial discrimination in elections, activists pushed successfully for legislation that partially regained what the justices took away. In the late 1980s, Court decisions dramatically weakened protections against racial discrimination at the workplace. Activists again countered, this time with the Civil Rights Act of 1991 (initially vetoed by President George Bush Senior as a "quota bill"). With Congress and the White House now under conservative Republican control, there is even more reason to fear increasingly aggressive action by an emboldened conservative judiciary.
The big racial case this term is, of course, the Michigan affirmative-action one known as Grutter v. Bollinger, in which the justices will revisit whether, how and to what extent racial background can be a factor in selecting students for admission to public universities. The Court's last encounter with affirmative action at selective public universities was 25 years ago, in the landmark Regents of the University of California v. Bakke case.
In Bakke, the Court was closely split, with the decisive opinion rendered by Justice Lewis Powell. On the one hand, Powell ruled against the particular affirmative-action policy under challenge because it set aside a definite number of seats -- 16 out of every 100 -- for racial minorities. To Powell it did not matter that the policy aimed to assist historically disadvantaged racial minorities; in his view, racial discrimination to assist minorities should be assessed according to the same standard as racial discrimination aimed at thwarting them. On the other hand, Powell indicated that other, more subtle affirmative-action plans would be permissible. He maintained that while any racial selectivity is presumptively invalid, narrowly tailored plans to advance a compelling justification can pass constitutional muster.
Powell cited Harvard University's admissions policy as a model, noting three features he considered essential. First, the Harvard policy set aside no set number of seats on a racial basis; it therefore allowed all applicants to be considered together and placed in competition against one another. Second, race constituted only one of several "plus" factors. Third, in justifying race as a plus factor, Harvard claimed it was seeking to generate a diverse academic environment from which all students would benefit. Embracing a "diversity" rationale for race-conscious selectivity, Powell posited this exercise of academic freedom as a compelling justification for permitting narrowly drawn affirmative-action plans.
Although no other justice joined Powell's opinion, it became the consensus view, and ever since has been widely relied upon as the authoritative guide to the constitutionality of affirmative action in university admissions. But the status of Powell's opinion may be seriously jeopardized when the Court hears Grutter, a suit brought by a disappointed white University of Michigan Law School applicant who charges that the school violated her rights by viewing the racial background of racial minority applicants as a substantial plus in an effort to achieve diversity. Federal District Judge Bernard A. Friedman (a Reagan appointee) refused to be bound by Bakke, ruled that the alleged benefits of diversity did not constitute a compelling justification for affirmative action and enjoined the law school from considering race in admissions.
The 6th U.S. Circuit Court of Appeals reversed Friedman, reaffirming the precedential authority of Bakke and concluding that the admissions practice of the law school adequately comported with the guidelines set forth by Powell. Affirmative action prevailed by a razor-thin margin. All five votes came from Democrats -- four Clinton appointees and one Carter appointee. Three of the four votes to invalidate the affirmative-action plan came from Republican judges -- two Bush Senior appointees and one Reagan appointee. In addition, the anti-affirmative-action faction picked up the vote of a Clinton appointee hailing from Memphis, Tenn.
A principal reason that Grutter is before the Supreme Court is that conservatives on lower courts have created splits within the federal judiciary that would necessitate intervention by the High Court in order to restore some semblance of consistency. Recognizing the significance of lower-court judges in the affirmative-action wars is important, because some commentators assert that Democrats err in vigorously resisting George W. Bush's nomination of right-wing Republicans to courts nominally subordinate to the Supreme Court. These critics contend that such posts are not worth the struggle because lower-court judges basically follow the directives set forth by the Supreme Court. This view is misleading.
Often the directions given by the Supreme Court are sufficiently broad and malleable to permit a range of interpretations. Applying the same Supreme Court precedent, a conservative judge and a liberal judge may and do reach very different results. The Supreme Court reviews a small fraction of the cases decided by lower federal courts; a careful, intelligent, strong-willed judge on a lower court can do much that is beyond the power of the Supreme Court to police. Finally, restive lower-court judges can play an important role by creating divisions that offer opportunities for intervention by their judicial superiors, thus affecting the Supreme Court's agenda.
The right is attacking the affirmative-action status quo on multiple fronts. The most stalwart opponents such as Justices William Rehnquist, Antonin Scalia and Clarence Thomas scornfully dismiss Powell's Bakke opinion as a naked, lawless, political compromise that warrants a clear, frank, unapologetic repudiation. Others would also like to uproot affirmative action but feel inhibited from openly saying so. U.S. Solicitor General Theodore Olson is of this sort. In his brief to the Supreme Court on behalf of the federal government, Olson avoids explicitly denouncing Bakke. But in various ways the logic of his argument implicitly impugns Powell's compromise. For example, the solicitor general writes disapprovingly that the University of Michigan's affirmative-action program "contains no limit on the scope or duration of its racial preferences and ... would sanction race-based admissions standards indefinitely." Posited as a narrow complaint about one particular affirmative-action program, the solicitor general's brief is actually a broad attack on virtually all existing affirmative-action programs.
A further line of attack might entail putting new limits on affirmative-action programs while purporting merely to apply Powell's Bakke directive. This is an approach likely to find favor with Justices Anthony Kennedy and Sandra Day O'Connor, both of whom are conservative Reagan appointees whose caution frustrates their bolder colleagues on the right. Instead of discarding the Powell opinion, Kennedy and O'Connor might insist that it simply be read more narrowly. This might lead them to strike down the University of Michigan Law School program on the grounds that it gives too much credit to the racial background of minority applicants or that the effort to admit a "critical mass" of minority applicants amounts to the creation of a camouflaged quota.
Is Affirmative Action Defensible?
Racial liberals occupy an awkward position as they face the right's attack on affirmative action. To preserve a policy that has advanced the fortunes of a relatively privileged stratum of historically disadvantaged racial minorities, progressives defend the flawed handiwork of a conservative jurist -- Lewis Powell -- whose commitment to racial justice was by no means robust. Confronting those who want to stymie even the small bit of reparative justice that affirmative action advances, progressives will be tempted to overlook the deficiencies within Justice Powell's formula. That, however, would be a mistake. Instead, progressives should steel themselves for the difficult task of simultaneously defending the affirmative-action status quo while recognizing the substantial faults of the prevailing doctrine, two of which are especially troubling.
First, under the logic of Bakke, all racial distinctions are the same -- racial distinctions that assist racial minorities as well as those that keep racial minorities in their "place," i.e., inferior to whites. This assertion of equivalence should not be accepted. As Justice John Paul Stevens has noted on several occasions, there is a large difference between signs that read "African Americans Welcome!" and "African Americans Stay Out!" though both draw racial distinctions.
But what about the negative consequences visited upon those "disfavored" by an affirmative-action program? Such consequences, though unfortunate for the affected individuals, are not created for the purpose of thwarting the relatively few whites whose rejection is directly attributable to affirmative action. White "victims" of affirmative action occupy the ranks of the unintentionally injured -- a position that is a far cry from the one occupied by racial minorities who have been (and are) intentionally blocked by real, invidious racial impediments. Affirmative-action programs of the sort under challenge in Michigan, moreover, are ultimately under the political control of a white majority that could, if it wanted, repeal the policy, as was done in California. That political reality imposes constraints on affirmative action that ought somewhat to allay concerns about institutions racially mistreating white applicants.
Second, Justice Powell's Bakke opinion rejected alternative justifications for affirmative action in university admissions, leaving "diversity" as practically the lone justification he was willing to recognize. Defenders of affirmative action have therefore felt impelled to rally around the "diversity" slogan. This rationale does have certain virtues. It suggests how affirmative action as a policy benefits all students, not only or even mainly racial-minority students. The diversity rationale also transforms racial-minority status from an extenuating circumstance that excuses lesser performance into a credential identifying the individual as the putative possessor of a different voice that will presumptively enrich a school's environment. Nonetheless, it is difficult for me to see why the possibility that a learning environment may be improved by the inclusion of students from a wide range of geographical, cultural, class, ethnic and racial backgrounds is a more acceptable justification for making racial distinctions than the aim to assist those affiliated with groups that have long been oppressed.
Let's be honest: Many who defend affirmative action for the sake of "diversity" are actually motivated by a concern that is considerably more compelling. They are not so much animated by a commitment to what is, after all, only a contingent, pedagogical hypothesis. Rather, they are animated by a commitment to social justice. They would rightly defend affirmative action even if social science demonstrated uncontrovertibly that diversity (or its absence) has no effect (or even a negative effect) on the learning environment.
Refuting the Right
The argument deployed by right-wing enemies of affirmative action is effective, specious and in need of constant refutation. Sometimes they defend making special efforts to recruit racial minorities while bitterly castigating as a betrayal of racial neutrality policies that boost minorities at the final stage of candidate-selection. But if the latter is a violation of racial neutrality, why isn't the former? In both instances, racially selective steps are being taken to assist racial minorities.
The acceptance that right-wingers seemingly offer to affirmative recruitment at present is mainly tactical; if they succeed in broadly invalidating affirmative action in Grutter, affirmative recruitment will be the next focus of complaint about so-called reverse discrimination. Sometimes enemies of racial affirmative action assert that while they want to see more racial minorities on the campuses of high-prestige public universities, they favor using nonracial means of accomplishing this end, such as the Texas plan under which a student in the top 10 percent of any graduating public high-school class in the state is automatically eligible for enrollment at the University of Texas. Now, apart from the questionable efficacy of that plan -- some observers doubt that it will adequately boost the numbers of racial minorities that matriculate at top state universities -- is its questionable legality.
If it is unconstitutional for a state to aid racial minorities purposefully through transparent affirmative action, why is it constitutional for a state to aid racial minorities purposefully through a method of selection that is formally race-neutral but actually race-conscious? The legal system does not allow states to exclude racial minorities purposefully from juries or ballot boxes via race neutral means (recall the old grandfather clauses and literacy tests). So why should the legal system allow states to foster the inclusion of racial minorities through such means? The day after affirmative action is ended, right-wingers who were previously singing the praises of race-neutral alternatives will all of a sudden begin perceiving that these alternatives also "victimize" whites, deviate from meritocratic standards, and so on and so forth.
Some right-wing enemies of affirmative action proclaim their allegiance to the notion that all governmental racial distinctions are presumptively evil. Their tune changes, however, when the subject is law enforcement. Then they defend practices under which police and security officials at airports take race (or ethnicity or apparent national origin) into account in making determination of suspicion. Racial profiling is reasonable, they say. But isn't affirmative action reasonable? Some right-wing enemies of affirmative action claim to abhor all racial discriminations by government. When one takes a look at their records, however, one finds that they almost invariably focus on affirmative actions that adversely affect (a few) whites and not the traditional, racist discriminations that continue to menace large numbers of people of color. Indeed, these same right-wingers scoff at the notion that affirmative action may serve usefully as a prophylactic device to counteract the real but nonetheless hard-to-trace racial resistance that people of color pervasively encounter.
The fight over affirmative action is not the only battle of significance relevant to the fate of racial justice in America. The defense of affirmative action is a battle worth waging, however, because positive discrimination on behalf of racial minorities in higher education is an important, albeit merely partial, way in which our society is attempting to repair the gaping wounds caused by innumerable racist actions and inactions that have fundamentally betrayed America's most noble aspirations. Hopefully the policy will survive the right's grotesque attempt to strangle it judicially in the name of equality.