New-School Diversity vs. Old-School Affirmative Action

Lucas Morel

January 1, 2003

It’s been a quarter century since the Supreme Court last heard an affirmative action case involving education. But the groundwork is being laid to replace “old school” affirmative action with “new school” racial diversity. With overt racial bigotry by public institutions on the wane, affirmative action is no longer defensible on the old ground of remedying the “lingering effects” of discrimination. So defenders of affirmative action have turned to racial diversity to make race a permanent fixture of government decision-making.

Now that President Bush has weighed in with both a speech and an amicus brief favoring the plaintiffs in the University of Michigan affirmative action cases, will his arguments against affirmative action persuade the Supreme Court? If Sandra Day O’Connor writes the opinion of the Court, which is likely given her previous opinions in such cases, the ruling will depend on two issues: how much O’Connor focuses on racial diversity as a “compelling state interest,” and whether or not she sees the university’s use of race as “narrowly tailored” to achieve that interest.

Court precedent, which O’Connor painstakingly laid out in Adarand v. Pena (1995), established this two-pronged “strict scrutiny” test to apply to any governmental use of racial classifications. Unfortunately, the Supreme Court has never ruled that government recognition of race in its treatment of individuals is unconstitutional on its face. As a result, each branch of government has held onto the right to consider race, justifying its use as “benign” rather than “invidious.”

With the Court beholden to strict scrutiny as the standard to judge racial classifications-allowing them to determine good from bad uses of race-the Michigan cases will likely turn on the meaning of racial diversity.

How is racial diversity on college campuses a “compelling state interest” for the state of Michigan? In the past, remedying the “lingering effects” of previous racial discrimination has qualified as a compelling interest. But in court pleadings and newspaper editorials, then University of Michigan President Lee Bollinger explicitly rejected this rationale. Instead, he defended the University’s affirmative action policies as “creating the most vital intellectual and educational atmosphere.”

To continue its affirmative action policies, the University needs two rulings from the Court: first, that racial diversity is a compelling state interest. Second, that using race as “a” factor, but not “the” factor, in admissions does not place too great a burden on white or Asian applicants denied admission for the sake of admitting black, Hispanic, and Native-American applicants.

But how does one define racial diversity? Is the race or ethnicity of a given applicant a legitimate, constitutional proxy for diversity in education?

In his recent speech, President Bush agreed that racial diversity in higher education is an “important goal.” He simply does not want schools to use race to achieve it. If the Court decides that diversity is compelling as a state objective, it must then decide if awarding points to black, Hispanic, and Native-American undergraduates solely for their race, or obtaining a “critical mass” (or percentage) of racial minorities at Michigan’s law school, was tailored narrowly enough to pass constitutional muster.

Because “race-neutral” methods were not considered by the University of Michigan, Bush hopes the Court will rule that the university’s “race-based approach” violates the Constitution. Given recent examples of race-neutral means of achieving racial diversity in California, Florida, and Texas colleges, Bush argues that Michigan’s consideration of race was not tailored narrowly enough to achieve racial diversity.

Unfortunately, this assumes that government has the right to decide when race can be used, diverting attention away from the individual and toward a group identity. All that ignores the most important right to be considered—the one possessed by individuals. If the Constitution stands for anything, it’s the protection of individual rights—what the 14th Amendment calls the “equal protection of the laws”—not racial diversity per se.

Interestingly enough, this does not mean the end of diversity. In fact, if individual freedom is protected equally, the results will be as diverse as Americans themselves. As the Federalist Papers state, protecting the diverse faculties of individuals is “the first object of government.”

If government exists to protect what human beings already possess—their God-given, natural-born rights—, then government has no business considering a person’s race when it comes to protecting their rights. And the Supreme Court, along with the other branches of government, should stop making a person’s race the measure of his or her rights under the Constitution. Joining Martin Luther King, Jr., the Court should do its part to “Let freedom ring.”

Lucas E. Morel is assistant professor of politics at Washington and Lee University in Lexington, Virginia and is an adjunct fellow at the Ashbrook Center.