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Racial preferences and productive debate

FILE - U.S. Supreme Court Justice Sonia Sotomayor applauds the crowd before speaking at the University of Utah, Wednesday, Jan. 28, 2015, in Salt Lake City.
FILE - U.S. Supreme Court Justice Sonia Sotomayor applauds the crowd before speaking at the University of Utah, Wednesday, Jan. 28, 2015, in Salt Lake City.
Tom Smart, Deseret News

As a law student intern at the U.S. Supreme Court in 1978, I sat in the crowded courtroom during oral arguments in a case brought by a white medical school applicant against the University of California-Davis. Demonstrators for both sides filled the court’s steps outside, and the case became the most hotly debated that year.

Last week, the court again heard oral arguments about racial considerations in university admissions. Abigail Fisher, a white woman, claims she was wrongfully denied admission to the University of Texas. Unusually, her case is before the court a second time.

The intense debate about racial preferences continues. Some worry that the court could now eliminate affirmative action altogether (a decision I think unlikely), changing who is admitted to universities across the country. Others would celebrate that holding.

While anticipating the court’s decision, I wonder how we can better handle disagreement and tension between the two sides of tough issues. Also, the recent racial tumult at the University of Missouri has spread to the Ivy League and beyond, increasing the focus on competing racial issues and the related on-campus arguments.

What amount of ugly rhetoric should be allowed as free speech, even though offensive? Should race still be considered in admissions to increase diversity in campus debates? When do volleys shot between two sides become counterproductive?

Ironically, I think the Supreme Court justices themselves can serve as a model for fruitful interaction on highly charged issues — whether on campuses, in Congress or City Hall, or even at Christmas dinner.

When Fisher’s claim was first addressed in 2013, the justices rendered a nearly unanimous 7-1 decision. However, the justices started their deliberations with nothing close to consensus. Justice Sonia Sotomayor, the court’s first Latina and a self-described “affirmative action baby,” drafted a dissenting opinion that disparaged the initial position taken by five other justices.

Her draft led to a compromise. Sotomayor withdrew her dissent, and she and Justice Stephen Breyer joined the majority in together delivering a more unified, but softened blow to affirmative action. The sole dissenting justice and two others wrote separate opinions describing their remaining differences on the larger issue.

The lesson: Strive for unity, and seek understanding and agreement, but stand by your principled view.

Last year, the Supreme Court voted 6-2 to approve a vote in Michigan that prohibited racial consideration in admissions. Sotomayor neither joined the majority nor withheld her dissent. Using a staggering 58 pages, she sharply attacked the majority’s position, and then took a small step too far.

In a 2007 case, Chief Justice John Roberts had made an iconic statement: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

Favoring racial preferences, Sotomayor turned Roberts’ phrase to her advantage, while questioning the majority’s good faith: “The way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race.” By commenting on the other side’s candor, she made the attack personal.

Roberts’ written opinion responded that racial preferences “can do more harm than good.” He tersely added, “People can disagree in good faith on this issue, but it similarly does more harm than good to question the openness and candor of those on either side of the debate.”

The lesson: In standing up for principle, don’t question character or good faith.

On the Supreme Court, Justice Antonin Scalia writes the most combative opinions and sits at the conservative end of the ideological spectrum. Justice Ruth Bader Ginsburg sits at the opposite liberal end and was the sole dissenter in the first Fisher decision. But they are friends who love opera and have attended the Washington National Opera together for decades.

Last July in Virginia, a new comic opera premiered that plays upon the two justices and their opposing positions, titled Scalia/Ginsburg. In separate arias, the two main characters belt their different perspectives of the Constitution. The parody of their differences and their enduring friendship has been appreciated by national media on all sides in the political arena, and by the justices themselves.

The opera’s final duet teaches the most important lesson for all of us, “We are different, we are one.”

Richard W. Sheffield is a business lawyer and served 12 years on the Provo School Board. He studies and writes about how we and our children engage, learn and grow most, using the theme “Light 2 Life.” He can be reached at RSheffield@FSLaw.c