Diversity Ruling Could Be a Very Big Deal
By Peter Brown
Reading Supreme Court tea leaves is always dangerous, but its decision to review two related cases on whether the desire for diversity can justify legally sanctioned racial discrimination could be a very big deal.
We won't know, of course, until next year. But, the prospects are questionable for the status quo in which diversity has become the rationale for a myriad of well-intentioned government and private-sector efforts.
Because the cases involve the assignment of children to public schools in Louisville and Seattle, the court will almost certainly decide how much racial balancing is allowable in education. But they offer the court a chance to make a sweeping ruling that could apply to every aspect of American life.
The Constitution prohibits treating people differently based on their race, but courts have allowed some public and private sector programs that do exactly that based on the notion that "diversity" is a compelling national interest.
That was the case in 2003 when the Supreme Court gave affirmative action/racial preferences at the University of Michigan a split verdict. It said the need for diversity in the student body warranted providing some admissions edge for racial minorities.
But these cases could go far beyond that narrow issue. Diversity, to many Americans, has come to rival apple pie and motherhood as a social good. Others, however, view it as ruse to justify social engineering.
A court finding that diversity is not enough of a compelling national interest to justify treating members of different races differently would not just end many government programs. It would also challenge the mindset of corporate America.
If the court's view on diversity has changed, it will be because its composition has changed.
In the 2003 Michigan case, Justice Sandra Day O'Connor was the key. She voted with the majority when the court allowed Michigan's law school to use race as a "factor" in admissions, but threw out the undergraduate system that gave black students a larger edge due to their race than a white or Asian-American got with a perfect SAT score.
In writing the five-to-four majority opinion upholding the law school approach, O'Connor cited the need for diversity in the student body as a sufficient reason to justify using race as an admissions factor.
But she was replaced on the court earlier this year by Samuel Alito, and the center of the nine-member court has moved one notch to the right.
During Alito's confirmation hearings, the NAACP Legal Defense Fund labeled his record as "extremely troubling." He is generally considered part of a four-justice conservative bloc -- along with Chief Justice John Roberts, Clarence Thomas and Antonin Scalia -- thought hostile to O'Connor's point of view on diversity's ability to trump the constitutional ban on racial discrimination.
The four members of the court who sided with O'Connor on the diversity matter in the Michigan cases are Ruth Bader Ginsburg, John Paul Stevens, Stephen Bryer and David Souter.
That leaves Anthony Kennedy, a Ronald Reagan appointee, as the court's swing vote. But in the Michigan cases he was part of the four-vote minority. He called the law school approach that relied on diversity as "patently unconstitutional."
The Seattle and Louisville cases will not be heard until this fall and probably not decided until next spring. The high court accepted appeals of lower court rulings that relied on O'Connor's 2003 Michigan rulings.
In both cities, local officials had created a system that gave minorities an edge for spots in "open choice" public schools when there are more applicants than there are seats.
Of course, the court could uphold the local school officials, or even if they overruled them issue a narrowly tailored decision that would not have widespread influence on social policy in the United States.
But until the justices make up their minds, we are entering a period that could begin a major change in racial/social policy in the United States.
Peter A. Brown is assistant director of the Quinnipiac University Polling Institute. He can be reached at peter.brown@quinnipiac.edu realclearpolitics.com at June 12, 2006 - 12:39:57 AM CDT |
