June 23, 2008

Obama & Affirmative Action Anniversary

Today marks the fifth anniversary of the Supreme Court’s 2003 landmark decision in Grutter v. Bollinger – involving race-based admissions at the University of Michigan – which held that the educational benefits of diversity can justify racial preferences in admissions, while also declaring that racial preferences should end within 25 years (by 2028).

We hope that journalists will take this opportunity to ask the presidential and Congressional candidates where they stand on the public and private use of racial preferences in education, employment, and contracting, and what they would do to facilitate the end of preferences by 2028. After all, it is the President and U.S. Senate that, by shaping the Supreme Court, will largely determine the future of affirmative action. And it is the President and Congress that, for example, mandate racial preferences in federal contracting, and could modify Title VI of the 1964 Civil Rights Act to make it even clearer to the courts that the “no” in "No person … shall … be subjected to discrimination” means no.

We’re particularly interested in hearing Barack Obama’s answers to the questions above, both because he has campaigned on transcending racial divisions and because he finds himself in the “Nixon goes to China” position of being the person best situated to end racial preferences. To his credit, Mr. Obama acknowledged in his Philadelphia speech that “anger exists within segments of the white community” over preferences for minorities, and that dismissing the anger “as misguided or even racist … widens the racial divide.” Now, it’s time for Obama to explain how he would address the “legitimate concerns” that he concedes are behind the white resentment.

Just as importantly, we would like to know what Mr. Obama’s preferred judicial philosophy means for the future federal court decisions that may well determine the fate of racial preferences. What we do know is that Obama has been unabashed about the type of judges he would appoint:
"We need somebody who's got the heart, the empathy, to recognize what it's like to be a young teenage mom. The empathy to understand what it's like to be poor, or African-American, or gay, or disabled, or old. And that's the criteria by which I'm going to be selecting my judges."
We would have preferred to hear Obama state that he would select judges who will objectively interpret the law. But that said, we wonder how his activist judicial philosophy would be applied to future affirmative action cases. Does understanding what it's like to be African-American imply that racial preferences should be upheld? Or does understanding what it's like to be poor mean that it’s wrong to give affluent minorities job and admissions preferences over poor whites? Alas, that is the problem with an activist judicial philosophy – it grants nearly absolute discretion to judges.

The current state of the law concerning race-based admissions is just one example of the legal morass that results when activist judges stray far from the text of the constitution and statutes they are supposed to be interpreting. Neither critics nor supporters of affirmative action can claim to understand the applicable legal standard in the wake of Grutter and its companion case Gratz v. Bollinger. It’s a standard that permits universities to seek a “critical mass” of minorities, but absolutely forbids quotas. It permits schools to use large racial preferences, but only if they’re disguised as part of a broad-based search for intellectual diversity.

That’s not to say that, objectively, the meaning of the Constitution’s Equal Protection Clause – the focus of Grutter – is crystal clear. One can make an argument, albeit an abandoned one, that the Clause is intended to protect only African Americans (see the legislative history of the 14th Amendment). On the other hand, one can easily argue that “equal” means equal with no ifs, ands, or buts. What one can’t plausibly argue – at least not without a lot of intellectual dishonesty – is that the Equal Protection Clause applies in full force to all racial minorities, somewhat less to Caucasians, and virtually not at all if it will negatively impact diversity in higher education. Nonetheless, that’s exactly what the Supreme Court has said, and we’re stuck with the resulting morass for the foreseeable future. Wouldn’t we all be better off if judges would stick to the law and leave policy making to legislators?

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