Joseph Sobran’s
Washington Watch

The Court and Diversity

(Reprinted from the issue of July 3, 2003)

What were we just saying about “our secret Constitution”? It may not be secret, exactly, but it’s certainly full of surprises. It seems clear enough when you read it, but it becomes an unpredictable oracle in the hands of the U.S. Supreme Court.

The Court has finally, after 25 years, returned to the vexed subject of affirmative action in college admissions standards. When it ruled in the Bakke case, you may recall, it left everyone unsatisfied. All that was clear was that the Court deemed it unconstitutional to discriminate against Alan Bakke. The principles at stake were left unresolved.

According to the Court’s latest reading of the oracle, affirmative action is good, as long as it doesn’t involve racial quotas. That is, it’s acceptable as long as it’s not too precise. Some students may be admitted to colleges, others rejected, because of their race, as long as we don’t know just which ones. Lower academic standards for “underrepresented minority students” are fine, even though this inevitably means that some white and Asian students will be excluded on racial grounds. The Court stipulates only that state-funded colleges should not make it too obvious who the beneficiaries and victims of this policy are.

Of course this can only mean that rejected white students will live with the festering suspicion that they lost their opportunities because of their race; black students who are accepted will likewise be suspected of making the grade on something other than merit. The Court has given its benison to state-sponsored racial discrimination, if it’s sufficiently furtive and indirect. It would be unacceptably tactless — and presumably unconstitutional — for the dean of admissions to write to an applicant: “We regret to inform you, despite your excellent academic record and impressive SAT scores, that you do not meet our current diversity needs.”

Speaking for the majority, Sandra Day O’Connor further stipulated that such policies mustn’t go on forever. She set an arbitrary 25-year limit on them. After that, I guess, they will become unconstitutional again. A strange notion of constitutional law!

O’Connor stressed that these admissions policies were not designed to remedy specific injustices to individuals. Their goal is to achieve “diversity.” She used the words “diverse” and “diversity” about 50 times in her opinion, without defining them or explaining the benefits of racial diversity to the “educational environment.”

How did the Court get into the business of micromanaging college admissions? Neither side in the divided Court bothered explaining. Both sides assumed that it was their job to supervise social engineering in higher education. The liberals want to do it while taking race into account, and the conservatives want to do it in a “color-blind” way; but neither even tried to show that this is any of the business of the federal government under the Constitution. They took for granted that the Fourteenth Amendment makes pretty much everything the federal government’s, and therefore the Court’s, business.

O’Connor added, probably unconsciously, an amusing twist. She wrote: “Effective participation by members of all racial and ethnic groups in the civic life of our nation is essential if the dream of one nation, indivisible, is to be realized.” Whatever that means, we should note that the phrase “one nation, indivisible” isn’t from the Constitution; it’s from the Pledge of Allegiance (though, being a Supreme Court justice, she omitted the words “under God”).

Evidently O’Connor sees it as the Court’s role to put teeth in the Pledge of Allegiance! This is certainly a novel understanding of American jurisprudence.

More seriously, the word “dream,” in this context, indicates that she is unaware of Michael Oakeshott’s warning, which I recently quoted here: “The conjunction of ruling and dreaming generates tyranny.” It isn’t the job of the state, let alone the judiciary, to impose grand dreams on its citizens. We all have dreams of our own, and the point of government is to serve as umpire among conflicting purposes, according to fixed rules. Inventing new rules corrupts this indispensable function. If we don’t know what the law is going to mean tomorrow, we don’t have the rule of law.

O’Connor’s ruling hardly mentions the Constitution. But if the Tenth Amendment means anything, it means that the federal government, including its judicial branch, has nothing to say about education within the several states. We may disapprove of the University of Michigan’s admissions policies, but they are for the state of Michigan to decide.

Like the Court itself, press reaction to the ruling (actually, there were two closely related rulings) has been divided between those who like affirmative action and those who don’t. The prior question of whether the federal government has anything to say about it has been totally forgotten, even by conservatives.

There is something silly about the whole controversy. It’s been a long time since I read Cardinal Newman’s The Idea of a University, but I don’t recall him saying that “a racially diverse student body” is “essential” to an institution of higher learning. Just where did this notion come from, anyway?

In his dissent, Clarence Thomas ridiculed “faddish slogans of the cognoscenti,” meaning the slogans of “diversity” that O’Connor parrots so monotonously. She never even considers alternatives. Might there be certain advantages to homogeneous student bodies? Might not, for example, a Catholic university thrive by ensuring that its students were Catholics, well instructed in the Faith? (Speaking of dreams!)

Of course the answer depends on what the mission of a university is, and different universities — especially smaller colleges — have different missions. For all their talk of “diversity,” this is one vital kind of diversity that never occurs to liberals like O’Connor. They can only think in terms of a single rigid model, which is really a fantasy. They tend to forget that the quality of a university depends chiefly on its specific nature and purpose, and on its teaching faculty. The “racial diversity” of the student body adds little to these things, and the students tend to segregate themselves by race anyway. It’s naive to imagine otherwise.

To read the turgid ruminations of the Court, you’d suppose that college life was an arena of “the robust exchange of ideas,” with Socrates presiding over a multiracial assembly of philosophers. The reality is usually rather different: football games, beer parties, rock music blaring from the dorms, the aroma of pizza. Not necessarily an “educational environment” in which Cardinal Newman would find himself at home. But O’Connor sees it as a breeding ground for national “leaders.” Well, to give it its due, it has produced a couple of recent presidents!

You can still get an education at a university, if you really try, but one of the principal learning skills you need is the ability to tune out all the noise produced by your racially diverse student body. But in its lofty abstractions, the Court is out of touch with such basic realities of college life today. But then, it’s out of touch with the U.S. Constitution.