The Sixth Circuit’s decision to strike down Michigan’s ban on racial preferences in admission to state universities is less a judicial finding than it is a cultural diktat. The view that racial preferences in college admissions serve the larger purposes of “social justice” is held with tenacity by the social elites who dominate college and university administrations, much of the federal bench, much of the media, and a sizable portion of elected leaders. That elite is to all practical purposes impervious to evidence that racial preferences wreak substantial damages on many of the individuals they are supposed to help; that they aggravate rather than ameliorate racial division; that they are grossly unfair to members of non-favored minority groups; and that they vitiate the principle that higher learning should be color-blind. Against all these weighty objections is balanced the feather of an idea that America can make up for its history of racial injustice by maintaining a system of awarding places in college to students who, though no fault of their own, lack the qualifications to get in on their own merit.
The racial gerrymandering of college admissions is a world unto itself, one which proceeds by an Alice-in-Wonderland logic. Everywhere other than the courts, the use of racial preferences is frankly acknowledged as a means of increasing the percentage of black and Hispanic students as a goal in its own right. But because the U.S. Supreme Court decades ago declared this form of racial favoritism illegal, the courts operate on an entirely different rationale. Drawing on Justice Powell’s opinion in the 1978 Bakke case, which was eventually turned into law by Justice O’Connor’s majority opinion in the 2003 Grutter case, the courts engage in the elaborate judicial fiction that racial preferences are employed solely to achieve the “educational benefits” of “diversity.”
This puts an enormous burden on an extraordinarily flimsy idea. “Diversity” has no particular educational benefits that anyone has been able to substantiate. We may well, for non-educational reasons, prefer to live in a racially diverse society, but the notion that college administrators are the best situated people in American life to decide the maximum educational mix of “more of these” and “fewer of those” on the basis of race and ethnicity convinces very few. It is just the pretense that the courts have foisted on higher education as the price of maintaining the racial spoils system of college admissions.
True, each time this pretense is challenged, an effort is mounted by academics to add cufflinks to the emperor’s new clothes. The Chronicle of Higher Education, for example, has just reported “four studies that are awaiting publication” that supposedly show that “diversity” bolsters “critical-thinking skills.” That claim has been ballyhooed before, most notably in the “Gurin Report,” a study that the University of Michigan conjured when it was defending itself a decade ago against the Gratz and Grutter challenges to racial preferences. The Gurin study was a masterpiece of high rise construction out of airy nothingness. We can wait and see whether the four new reports match it. Why “critical-thinking skills”? Possibly because finding that a vague and indefinite good enhances an even vaguer and more indefinite good can create a treasure house full of footnoted intellectual baubles of the sort that certain members of the nation’s courts have shown an affection for.
Which brings us back to the Sixth Circuit. The decision it handed down by the Court on November 15 took the bizarre world of bench-made racial preference law to a whole new level. The court went beyond the looking glass world of “diversity” rationales to invent a brand new confabulation: the notion that banning racial preferences is itself a form of discrimination.
Under this logic, of course, wherever a racial preference now exists, it must continue to exist. Perhaps preferences can be retired after the racial group has vanished into the mists of demographic mixing, but even that is uncertain. The Pequots of Connecticut vanished from history in the 1635 Pequot War but were resurrected in 1986 to take advantage of a legal loophole that permitted a Native American group to run a bingo parlor. Today they are a thriving “people” in charge of the Foxwoods Resort Casino. Create incentives for racial group identity and chances are pretty good you will get more racial group identity. If the logic of the Sixth Circuit’s decision were to become the law of the land, we would be quite effectively writing a Racial Spoils Amendment into the U.S. Constitution.
Roger Clegg, one of the most indefatigable opponents of racial preferences, thinks the chances are negligible of this decision passing muster with the U.S. Supreme Court, and I have heard similar judgments from many other allies in the battle. They are probably right. Probably. Right? I wish I had the same confidence. When I wrote Diversity: The Invention of a Concept in 2002, I did not imagine that Justice O’Connor would endorse the fatuities that the University of Michigan had offered in defense of its naked racial preferences. But she did. When the Supreme Court took the Obamacare case, who imagined that Justice Roberts would divine a reason to find the law Constitutional—a reason not even contemplated by the law’s supporters?
When it comes to racial preferences and the U.S. Supreme Court, experience teaches us to take nothing for granted. The Court often operates far outside the bounds of common sense and outside the bounds of conscience as well. It has the tortured history of the “diversity” doctrine to live up to or live down; it has the rule of precedent to navigate; and it has the overwhelming pressure of elite opinion to parry.
I hope and pray that the Sixth Circuit’s decision will be cast aside as the legal soap bubble it is. But these are perilous times and those who expect the nation’s highest court to set things right had better be prepared to fight for that outcome. We need to pull together our best arguments and best resources, including public opinion, to prevent the establishment of a new rule of “racial preferences once, racial preferences always.”