Affirmative Action Isn't a Constitutional Issue
Reading strongly held views about political morality into the U.S. Constitution is a powerful temptation on both sides of the political divide. That's one lesson of the heated debate between Supreme Court justices in this week's split decision to uphold a Michigan ban on affirmative action at state universities.
Justice Sonia Sotomayor argued that it's unconstitutional for a state to make its universities admit students without regard to race. Justices Antonin Scalia and Clarence Thomas argued that it's actually race-sensitive admissions policies that are unconstitutional.
The better approach is the one Justice John Paul Stevens took in 1978 in University of California Regents v. Bakke. When there's no need to decide what the Constitution says about a policy, the justices shouldn't take up the question. And there's already a statute that settles whether universities should be able to take race into account in admissions: the Civil Rights Act of 1964.
That law holds that "no person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance."
These words are not tricky to interpret. They mean that a university receiving federal funds can't discriminate against applicants based on their race. They can't discriminate against blacks or whites or Asians or any other racial group. Which means, as a necessary implication, that they can't discriminate in favor of any racial group either.
Justice Lewis Powell wrote the controlling opinion in Bakke, and he came up with an ingenious way of ignoring the Civil Rights Act. That law, he reasoned, was an attempt to enforce the clause of the 14th Amendment that requires states to offer equal protection of the law to everyone. If the court decided that racial preferences for disadvantaged minorities are compatible with equal protection, then, they would have to be compatible with the statute, too.
Stevens's response was that even if the Constitution did not itself prohibit some forms of racial discrimination, it allowed Congress to do so. No justice has ever given an adequate answer to his argument -- not even Stevens himself, who switched sides on the issue during his time on the court without ever explaining himself. The court has just kept pretending that the statute doesn't say what it says.
Resurrecting Stevens's original approach would let the issue of racial preferences in college admissions be settled democratically. We could go with the no-racial-preferences policy of the Civil Rights Act. Or, if we reached a political consensus in favor of allowing universities some leeway to discriminate, Congress could amend the act, and the president could sign the revision.
Instead of going the statutory route, though, the justices have for decades tried to find the right policy toward racial preferences in the Constitution. Are they categorically forbidden? All right if they're moderate? Mandatory? None of these attempts has been very convincing.
Sotomayor argues that by passing a ban on racial preferences in a state referendum, Michigan made it harder for racial minorities to get their way -- and that this is constitutionally suspect. Among the many problems with this analysis is that the referendum clearly served the interests of one racial minority: Asian Americans, whom collegiate affirmative action discriminates against. The Constitution can't plausibly be held to put a thumb on the scales for some minorities over others.
The idea that the Constitution mandates colorblindness in government institutions, including government-funded universities, is attractive. But the constitutional text doesn't clearly command the courts to strike down race-conscious policies. Nor is there much historical evidence suggesting that the 14th Amendment was originally understood that way. The conservative justices who insist on colorblindness don't even try to make such a historical argument, which ought to bother them as originalists.
My own view on the policy question aligns with the court's conservatives. Race-conscious admissions policies treat some applicants unfairly, generate ill will and reduce the likelihood that some students will succeed. Universities that follow these policies also seem incapable of telling the truth about what they're doing.
But it's a policy question, not a constitutional one. The Constitution doesn't tell us how the University of Michigan or the state's voters should decide the issue. And we should all quit pretending otherwise.
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