Getting affirmative action right.

In the months leading up to the Supreme Court decision on affirmative action, it was hard not to feel a sense of dread. At other great moments of constitutional drama—the decision to reaffirm Roe in 1992 and to settle the presidential election of 2000—the justices had allowed an inflated sense of their own importance to distort their judgment and compromise their reasoning. On both occasions, their moment in the national spotlight diminished them: The Court short-circuited important political debates without firmly rooting their intervention in constitutional principles that people on both sides of the debate could readily understand.

On affirmative action, there was a similar danger that the Court might intervene heavy-handedly in an area where the country was hardly clamoring for judicial intervention. Universities had more or less made their peace with the flawed Bakke decision, and even the Bush administration had clearly signaled that the last thing it wanted was a principled decision striking down affirmative action in all its forms. There was every reason to fear that the swing justice, Sandra Day O’Connor, would reprise her role in the abortion case by crafting a novel and muddled compromise that both gave her the last word on a bitter national debate and made the polarization far worse.

But O’Connor resisted temptation. Instead of trying to put her own stamp on affirmative action—as she did on abortion when she invented a new standard for measuring restrictions—O’Connor candidly acknowledged the complexity of the political and legal challenges universities face as they struggle to balance the competing values of color-blindness, diversity, and academic excellence. In the 25 years since the Court last confronted affirmative action in higher education, political pressures to ensure that universities look like America have proved to be so intense that, when courts and legislators have banned affirmative action, the best public universities have refused to accept the resulting decline in the number of minority students that inevitably follows. Instead, they have lowered academic standards across the board, thereby preserving minority enrollment at the cost of destroying their selective admissions standards.

Rather than forcing universities to choose between selectivity and diversity, O’Connor said they had a constitutionally compelling interest in achieving both. Writing for a majority of her colleagues—she was joined by Justices John Paul Stevens, David Souter, Stephen Breyer, and Ruth Bader Ginsburg—she upheld the University of Michigan Law School’s affirmative action program (which seeks a “critical mass” of minority students to achieve the intellectual benefits of educational diversity) and reaffirmed Justice Lewis Powell’s Bakke opinion in unequivocal terms. But, unlike her coy performance in reaffirming Roe, where she upheld the result without endorsing its reasoning, O’Connor made clear she agreed with the core holding of Bakke—that universities have a compelling interest in the educational benefits that flow from racial diversity. To preserve the educational autonomy that the First Amendment protects, O’Connor concluded, judges should defer to the judgments of educators about how best to fulfill their educational mission.

At the same time that she reaffirmed Bakke, O’Connor’s opinion for the Court made clear that she and her colleagues take the strictures of Bakke seriously. Justice Powell had stressed that race couldn’t be used to insulate minority candidates from competitive consideration with other applicants. Emphasizing the importance of treating each applicant as an individual, O’Connor and Breyer joined their four conservative colleagues—Justices William Rehnquist, Anthony Kennedy, Clarence Thomas, and Antonin Scalia—in rejecting the University of Michigan’s undergraduate admissions policy. The 20-point automatic boost that all minority applicants receive, these justices held, precludes the university from assessing the particular contribution to educational diversity that each individual applicant brings to the table.

It’s true that the Court has perpetuated the inherent fuzziness of Bakke rather than frankly acknowledging its analytical weaknesses. While Justice Powell insisted that race could be a “plus factor” but not a rigid quota in admissions, the difference between the two is often hard to discern. As Chief Justice Rehnquist noted in his dissent from the law school case, the number of admitted African American and Hispanic students—which the university calls a “critical mass”—has been consistently (and suspiciously) proportionate to the number of African Americans and Hispanics in the applicant pool. Moreover, given the magnitude of the score gaps between African Americans and Hispanic students and their white and Asian counterparts, it’s hard to avoid the conclusion that race is as decisive a factor for admitting many of the minority law school applicants as it is for admitting the undergraduate applicants. The most obvious difference is that the undergraduate admissions program assigns a numerical value to its racial preferences while the law school doesn’t.

In her dissent to the undergraduate case, Justice Ginsburg suggested the Court should have allowed universities to be candid about the degree of their racial preferences, rather than forcing them to lie. “If honesty is the best policy, surely Michigan’s accurately described, fully disclosed College affirmative action program is preferable to achieving similar numbers through winks, nods, and disguises,” Ginsburg argued. She noted persuasively that schools such as Rice University in Texas that have been prohibited from taking race into account explicitly have resorted to camouflages, such as asking applicants to write self-pitying essays about their “cultural traditions” or their successes in overcoming victimhood. But, if the Court removed all constitutional requirements that applicants be evaluated as individuals, universities would almost certainly resort to crudely statistical, two-track admissions systems that fail to compare white and black applicants in a meaningful way.

If, by contrast, the Court took the opposite approach and required universities to adopt purportedly race-neutral alternatives to racial preferences, as the Bush administration urged, the winks and nods and camouflages would be even less transparent. Faced with lower-court decisions or voter referenda prohibiting the explicit consideration of race, universities have lowered admissions standards across the board to achieve racial diversity at all costs. After Texas courts and California voters banned racial preferences in the mid-’90s, both campuses adopted so-called X-percent plans, which require the admission of students from the top of their high school classes regardless of their test scores. And, in 2001, the University of California reduced the importance of the SAT I by adopting a purportedly holistic admissions procedure known as “comprehensive review.” Under the old admissions procedures, half the class on each U.C. campus was admitted according to strictly academic criteria, such as grades and test scores, and the other half was evaluated according to softer criteria, including a personal statement in which applicants were invited to discuss their success in overcoming “hardship.” Under “comprehensive review,” the entire class is evaluated according to the softer criteria. The results of the program have been similar to those in Texas: The average SAT I score declined at selective U. C. campuses, and the number of blacks and Hispanics slightly increased.

Justice Thomas explicitly endorsed this approach in his dissent to the law school decision. Thomas recognized that Michigan’s real interest isn’t educational diversity for its own sake but a desire to maintain its high admissions standards as a selective university while, at the same time, achieving enough racial diversity to satisfy the political pressures for state universities to look like America. Although Thomas accurately diagnosed the real stakes in the case, he then resorted to raw populism. Contrasting what he calls “the people’s Constitution” with a “faddish slogan of the cognoscenti,” Thomas insisted that “[t]he Law School’s decision to be an elite institution does little to advance the welfare of the people of Michigan,” since most of its graduates don’t practice in the state. “There is nothing ancient, honorable, or constitutionally protected about ‘selective’ admissions,” he wrote, and he questioned the value of objective predictors of academic performance, such as standardized tests.

Thomas and the color-blind conservatives, in other words, believe universities should have to choose between racial diversity and academic excellence; and they are willing to undermine the selectivity of the great public universities—as has already happened in Texas and California—in order to vindicate the value of color-blindness. But Thomas and Scalia, who joined his opinion, offered no evidence that the Framers of the Fourteenth Amendment originally embraced such an unequivocal ban on racial classifications. Nor could they, since the historical evidence suggests that the Framers of the Fourteenth Amendment understood the Constitution to prohibit racial classifications only with respect to civil rights but not political or social rights; and, in 1868, when the Fourteenth Amendment was ratified, access to education was not considered a civil right. Thomas and Scalia claim to be devoted to the original understanding above all, and their failure to offer a historical defense of their position makes it hard to accept on their own terms.

Thomas’s most powerful constitutional argument is that there is no difference between laws designed to subjugate citizens on the basis of race and those designed to benefit citizens on the basis of race. Both, he claimed, unfairly stigmatize their victims (or beneficiaries) whether they are intended to hurt or to help. “The majority of blacks are admitted to the Law School because of discrimination, and because of this policy all are tarred as undeserving,” he wrote. “This problem of stigma does not depend on determinacy as to whether those stigmatized are actually the `beneficiaries’ of racial discrimination.” The question of whether racial preferences hurt their beneficiaries more than help them is a relevant constitutional question. The Framers of the Fourteenth Amendment clearly intended to abolish racial classifications that created a racial caste system, such as the Black Codes, which, among other things, forbade African Americans from making contracts or inheriting property. And black conservatives such as Thomas argue powerfully that racial paternalism, and the low expectations it creates, can be just as caste-affirming as racial segregation. But most African Americans reject Thomas’s argument; they insist they don’t feel stigmatized by racial preferences, which they believe help to break down the racial caste system rather than perpetuate it. In the face of widespread disagreement among blacks and whites about whether or not preferences stigmatize their beneficiaries, judges should defer to legislatures rather than impose their own beliefs on a divided nation.

In contrast to O’Connor’s uncharacteristic humility, the conservative dissenters embraced judicial activism as a kind of heroics. Thomas lambasted the Court—twice—for lacking what he calls the “courage” to forbid the use of race in university admissions. O’Connor, by contrast, recognized that the Supreme Court has a limited ability to effect social change, that the demand that universities look like America is too powerful to be uprooted by a judicial command, and that the most constructive role the Supreme Court can play is to establish clear rules and stick to them once society has structured its institutions around them. If the Court is going to act like a legislature, the least it can do is to legislate well; and, in reaffirming Bakke, that is what it has done.

Bakke, despite its flaws, has proved the most practical way of balancing the competing goals of educational excellence, individualized consideration, and racial diversity. Still, the compromises it represents have papered over the real causes of African American underperformance, which will persist until the nation commits itself to improve K-12 education for all. Until that happens, it’s hard to share O’Connor’s optimism that, “25 years from now, the use of racial preferences will no longer be necessary.” When Bakke was decided, Powell was shocked at Thurgood Marshall’s prediction that preferences would be necessary for 100 years. But, as Justice Thomas noted, the academic performance of African Americans has not noticeably improved since Bakke, and it is not likely to improve as long as African American students are subject to lower expectations than their white counterparts. Moreover, as the United States grows more diverse during the next quarter-century, the political demands for public institutions that look like America will not fade away. They will only grow more insistent. With admirable humility, the Court recognized that it can’t begin to solve our racial problems, but, by treading lightly in an area where there is no social or constitutional consensus, it can avoid making them worse. For leading the Court to this unexpectedly modest resolution, we have Justice O’Connor to thank.

This article originally ran in the July 7 & 14, 2003 issue of the magazine.