CURMUDGEONLY THOUGHTS ON GRUTTER v. BOLLINGER

The Constitution allows the use of race as one factor in admissions decisions, as long as there is individualized determination (and, apparently, so long as the program does not "unduly harm nonminority applicants"). This seems fine to me as a matter of constitutional interpretation. It's always been one of the cruellest ironies in American constitutional history that the reconstruction amendments never really protected African-Americans and are now being used to attack what defenders of affirmative action often defend as attempts to remedy the lingering effects of decades of state-sponsored racial subordination. I realize that according to the narrow terms of the case, the issue here is not the use of affirmative action to remedy discrimination -- but this is partly because the Court has set high hurdles for those who would attempt to prove discrimination (much higher standards of evidence than the Chief Justice applies to his own use of statistics in dissent in Grutter, for whatever that's worth). Even though for broad jurisprudential reasons the "remedial" argument doesn't fly right now and U of M didn't defend its programs in those terms, it's certainly a popular justification for such programs in general.

But I will admit that I am troubled by a few things in the opinion. First, Justice O'Connor seems all too willing to defer to the judgment of what she calls "major American businesses" and "the military" and their estimations of good public policy. Those of us who are interested in resisting the corporatization of the university should be skeptical of a Court that takes "major American businesses" at their word when they prefer any policy, especially if the Court seems to be deferring to their judgment about educational policy. And there is already too much deference to the military going on right now in American society. They should be under civilian control, not the other way around. In other words, even if you like the way such arguments cut right now, you might not like the result the next time around.

In addition, these sentences from O'Connor's opinion make me really uncomfortable:

In order to cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity. All members of our heterogeneous society must have confidence in the openness and integrity of the educational institutions that provide this training.

Here the Court is trying to foster legitimate rule by appealing to a principle of merit in the selection of access to higher education. The visual metaphors here are quite stunning when you think about them: what is necessary is the appearance of openness and integrity. Again, whatever you think about the policy, affirmative action is not a purely merit-based system; in fact, it is in the critique of the supposedly objective concept of merit that defenders of affirmative action have some of their strongest arguments, it seems to me. Plus, I must confess: my students (mostly white, many of them from economically disadvantaged backgrounds) are not going to be convinced by these arguments, even if not all of them will work up the courage to say this to me. Everyone knows (or should know) that standardized test scores can essentially be bought. One of the reason why affirmative action is controversial is because the lack of a social safety net in the U.S. more or less forces those in lower income brackets to be nervous about their life prospects and protective of advantages that they have, however those advantages are obtained. And as far as candidates for disadvantage go, there is no reason I can think of to claim that poor folks living in the de-industrializing northeast (for example) are not also worthy of consideration. Perhaps this is one reason why Orlando Patterson argues in this weekend's NYT that poor whites should be phased in to affirmative action programs. Given that "major American businesses" are unlikely to accept a program that is premised on the idea that the market systematically disadvantages some people, however, I wonder about the political viability of such an inclusion.

And how can O'Connor and those who joined her opinion claim the authority to dictate a 25-year time limit on affirmative action programs?

At the very least, however, this decision does allow for a broader political discussion of whether or not affirmative action is good public policy, a discussion that would not be possible if the Court simply invalidated such programs. If opponents of affirmative action want to prevail, they will now have to appeal to voters rather than rely on the judgment of a majority of the Justices on the Supreme Court. And defenders of such programs will have ample opportunity to answer those charges, something that most certainly would not have happened if the decision went the other way. Strikes me as a good thing, all things considered.