“No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” Fourteenth Amendment to the US Constitution.
In the notorious 1896 decision by the US Supreme Court, Plessy v. Ferguson, the Court ruled that state-mandated disparate treatment by race did not violate the equal protection clause of the Fourteenth Amendment. In a desperate and convoluted effort to accommodate the social views of the time, the Court ignored the plain meaning of the Fourteenth Amendment and decided that Louisiana could pass a law requiring: “equal but separate accommodations for the white, and colored, races” on railway cars. On the lonely side of the 8-1 decision, Justice Marshall Harlan dissented:
“Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved.”
In Brown v. Topeka Board of Education in 1954, the Court reversed itself, establishing the principle that government decisions could not be raced based. In his brief before the Supreme Court in Brown, the future Justice Thurgood Marshall powerfully argued that “Distinctions by race are so evil, so arbitrary and invidious that a state, bound to defend the equal protection of the laws must not invoke them in any public sphere.”
The Supreme Court recently ruled on the application of racial preferences for school admissions. In the case of Gratz v. Bollinger et al. regarding the University of Michigan’s undergraduate admissions process, the Court ruled that a rigid point system that gave significant and automatic advantage based on race was unconstitutional. In a second case having to do with University of Michigan Law School admissions, Grutter v. Bollinger et al., the Court permitted racial preferences if the admissions decisions were not rigidly linked to race. This second case allowed for the application of racial distinctions to achieve a critical mass of certain racial populations so long as race was considered in a holistic view of the entire individual. The logic of the two decisions seems to be at war with one another. How can one achieve the so-called advantage of maintaining a critical mass of minority students, without adjusting the weighting in admissions criteria, however applied, to yield a given fraction of minority students?
There is a reason that affirmative action activists have almost unanimously viewed the split decisions as a victory. Since the Court now permits racial preferences to achieve diversity, advocates are confident that they can always obscure and befuddle the details of the admissions process so that potential litigants will have difficulty proving that any rigid racial preferences applied.
Let us be clear, proponents of racial preferences will find surreptitious means to systemically apply their racial criteria in the admissions process. If the nod were given to a minority students in admissions in the rare instances where the qualifications of two candidates for admissions were indistinguishable, opponents of racial preferences would not be so offended by their application and proponents would not view such preferences as so crucial in achieving their preferred mean hue of the student population.
However, in making the ruling the Court has done grave injustice to the principle of strict scrutiny when applied to circumscription of individual constitutional rites. In modern jurisprudence, the Court has applied a “strict scrutiny” to any state-sponsored distinctions based on race. To pass constitutional muster, such racial distinctions must meet a high standard of “compelling state interest.” As Justice Clarence Thomas pointed out in his dissent to Grutter v. Bollinger et al., the Court had only permitted state-sponsored racial distinctions in two classes of situations.
The first is the case of national security. The Court ruled that the state interest in restricting Japanese-Americans during World War II was sufficiently compelling to be permitted notwithstanding the protections the Fourteenth Amendment. In retrospect, it is clear that the internment of Japanese-Americans was borne more out of racial prejudice than legitimate security issues, providing additional evidence of the sorry observation in our history that it is far too easy to misapply racial distinctions.
The second category where the Court has permitted the use of racial distinction is for direct and narrow remediation of racial discrimination by an institution that has discriminated in the past. No such claim was made in the University of Michigan cases.
Elevation of the vague notion of “diversity” (of skin color but certainly not of perspective) to a compelling state interest undermines the bulwarks of the Fourteenth Amendment and other constitutional protections so that they might more easily be washed over by an unconstrained flood of government action. The jurisprudence of the Court, if logically applied, might permit racial profiling or broader search powers to address the compelling state interest of law enforcement. Thomas asks, if the Court is willing to grant deference to a school to use race-based admissions to achieve diversity, would historically black colleges be permitted to use race-based admissions to maintain the homogeneity?
Ultimately, the case can be made that race-based preferences do more to harm their potential beneficiaries by stigmatizing true excellence and achievement. However, like Plessy v.Ferguson, the recent decision to allow violations of the Fourteenth Amendment in government-sponsored school admissions will ultimately come to be viewed as a sad aberration and pathetic pandering to the conventional wisdom of the politically influential. There also remains the growing practical problem of applying racial distinctions to a population diligently, happily, and rapidly blurring those artificial categories by marriage. One can only hope that, as suggested by Justice Sandra Day O’Connor, the case for race-based preferences ought to disappear in 25 years. Unfortunately, there are too many people with a vested interest in maintaining the status quo for such preferences to slowly whither.
In the opening of his dissent, Justice Thomas, who has suffered the stigma of being treated different because of his race by both the mean-spirited and those with noble aspirations reminded us the words of the abolitionist and former slave Frederick Douglass:
“What I ask for the negro is not benevolence, not pity, not sympathy, but simply justice. The American people have always been anxious to know what they shall do with us… I have had but one answer from the beginning. Do nothing with us! Your doing with us has already played the mischief with us. Do nothing with us! If the apples will not remain on the tree of their own strength, if they are worm-eaten at the core, if they are early ripe and disposed to fall, let them fall! … And if the negro cannot stand on his own legs, let him fall also. All I ask is, give him a chance to stand on his own legs! Let him alone! …[Y]our interference is doing him positive injury.”
Once again, Douglass has proven prophetic.