Amid all the landmark decisions issued by the Supreme Court this week, one non-decision is worth considering. By a 7-1 vote, the High Court returned a ruling on affirmative action admissions policies at the University of Texas back to the lower courts. Those on both sides of the argument claimed victory, and the issue, for now, remains divisive and unsettled.
Yet the opinions written in the majority decision voiced some key principles that ought to be considered in any reforms of affirmative action going forward.
Justice Anthony Kennedy, writing on behalf of himself and six other justices and quoting from precedent, said that "[d]istinctions between citizens solely because of their ancestry are by their very nature odious to a free people." He also noted that "any official action that treats a person differently on account of his race or ethnic origin is inherently suspect."
These ideas were born in a nation where "official action that treats a person differently on account of his race" is an inadequate euphemism to describe a legacy of slavery, brutality, and codified discrimination that blemishes America's history in a manner that time can never fully erase. As such, the impulse behind affirmative action is an entirely noble one, in that those who seek to provide opportunities for disadvantaged minorities are, to some measure, offering some compensation for generations of injustice.
The difficulty, however, is to channel these good impulses into a policy that doesn't perpetuate the underlying problem.
Kennedy addresses that in his decision, insisting that any racial amelioration policies are "constitutional only if they are narrowly tailored to further compelling governmental interests." Yet Justice Thomas, in a concurring decision, insists that no such compelling governmental interest exists. He stated that "[t]he University's professed good intentions cannot excuse its outright racial discrimination," since "racial discrimination is never benign."
It's hard to argue with that. But at the same time, Justice Thomas contends that "[a]ttaining diversity for its own sake is a nonstarter," implying that policies designed to promote racial diversity have no value. But that's simply not true. A color-blind society that eschews official or even voluntary segregation is inherently preferable to the alternative. The question then becomes whether affirmative action leads us to that society or drives us further away.
With this decision, the court is requiring that any policy stand up to scrutiny in response to that question. That's a welcome and worthwhile standard.