The Right Coast

February 27, 2004
New Fallout from Supreme Court’s Affirmative Action Decisions: Are Racial Preferences Now Required?
By Gail Heriot

Eight months ago, the Supreme Court's historic decisions on affirmative action in higher education appeared to end in a tie score. While the Court upheld the University of Michigan Law School’s racial preference scheme in Grutter v. Bollinger, it condemned as unconstitutional UM’s undergraduate policy in the companion case of Gratz v. Bollinger.

But appearances can be deceiving. In fact, the decisions were an overwhelming defeat for those (like me) who believe that public universities have no business giving one applicant an advantage over another based on his or her skin color--no matter which skin color happens to be in fashion at the time. Writing for the majority in Grutter, Justice Sandra Day O’Connor declared that racial diversity is a “compelling purpose” sufficient to justify extremely strong racial discrimination The bone thrown to racial preference opponents in the form of the Gratz decision had no meat on it, since it was decided on essentially technical grounds. With just a few changes, UM’s undergraduate affirmative action policy was up and running again with every bit as much racial discrimination as before.

When the decisions came down, a “naive” law student asked me whether this meant that state universities would be required to racially discriminate on the basis of race. “No,” I told him, trying to suppress a look of impatience, “the Court is simply taking the position that a State may racially discriminate if it chooses to. A State is free to decline to do so, just as California did with the passage of Proposition 209.” In fact, I assisted Ward Connerly of the American Civil Rights Institute in drafting language for a Michigan popular initiative, which, if passed by voters, will do the same–decline the Supreme Court’s invitation to take race into account at Michigan public universities.

But Orwell is apparently resides in Michigan. Recently, a complaint was filed in the case of Henry v. Michigan Civil Rights Initiative, now pending before the Wayne County Circuit Court. The gist of the complaint is that the proposed Michigan Civil Rights Initiative is in conflict with the Grutter decision and that the court should therefore enjoin its proponents from collecting the signatures necessary to put it on the ballot.. According to the argument, Justice O’Connor held the goal of racial diversity on campus to be “compelling” and hence Michigan is required to pursue it.

You have to admit that there is a certain perverse logic to this argument. Presumably, a “compelling” purpose was originally supposed to mean not simply a good and worthy purpose, but one whose logic is inescapable. That’s why in the past, courts declined to find a compelling purpose in any case where to logic wasn’t downright unavoidable–as in the need to separate prisoners by race during a prison race riot. These days, however, it appears that a “compelling purpose” means whatever policy a majority of Justices endorses. Oh well. We'll just have to stay tuned.

A hearing is scheduled for March 19, 2004.