In peppering lawyers during Tuesday’s historic hearing on affirmative action, the justices of the Supreme Court seemed to long for a day when issues of race won’t matter so much. But to their credit, most of the nine appeared to acknowledge that such time has not yet come.
Several justices, including the anticipated swing voters on this volatile issue, Sandra Day O’Connor and Anthony Kennedy, questioned the assertion of affirmative action opponents that race can never be used as even a factor in university admissions.
“You have some precedents out there that you have to come to grips with,” O’Connor chided the lawyer representing white students who contend that the entry formulas for the University of Michigan undergraduate and law schools are illegal. The case is the court’s first review of affirmative action in 25 years, and its decision will reverberate far beyond Ann Arbor.
Kennedy asked how the challengers could argue that a university has no compelling interest to promote diversity if year after year it finds itself with scant minority representation in its student body.
Without reading too much into their questions, it appeared that O’Connor leans more toward preserving some form of affirmative action, while Kennedy seemed to recognize a racial disparity problem but was troubled about the adequate remedy. He asked a U-M lawyer if the court would be obliged to suggest alternatives should it strike down affirmative action. The attorney dodged the issue, but the court cannot. Alternative direction would be necessary.
Justice Antonin Scalia, the court’s most vocal conservative, repeatedly offered one untenable suggestion: If U-M cares so much about diversity, it should just lower its standards.
U-M lawyers countered that Scalia offered a Hobson’s choice. Just so. Quality and diversity are not mutually exclusive.
In this time of war, a brief filed by retired military brass, including Gulf War Gen. Norman Schwarzkopf, seemed to carry great weight with the justices. That brief said affirmative action was the only way the armed forces could recruit and groom an officer corps that is sufficiently elite and diverse enough to lead diverse forces.
At the core of the challenge to U-M is the contention that affirmative action punishes people for being white, a violation of the constitutional guarantee of equal protection of laws. But the challengers also question the need for universities to reflect the makeup of society. And if there is such a need, they say the only acceptable solution is to fix the underlying social, economic and educational disparities that fail to prepare minorities adequately for college.
That certainly should be fixed. But in the meantime, generations of minority students will be denied the opportunity for the top-notch education that could make them the leaders who take society past its need for affirmative action programs.
The preceding editorial appeared in the Detroit Free Press.