The late Justice William Brennan reportedly said that the most important word in the Supreme Court is not "justice" or "equality" or "law" but "five." Soon the Supreme Court, and perhaps Justice Sandra Day O'Connor as the decisive fifth vote, will decide whether racial preferences will be part of American higher education forever, or whether America will continue its long, meandering march to a colorblind society.
The result may turn on how she construes fidelity to her departed friend Justice Lewis Powell. He did more than anyone else to make the word "diversity" ubiquitous.
The court will be ruling on the constitutionality of the racial preferences used at the University of Michigan and its law school. Undergraduate applicants get 20 points added to their scores (150 is the maximum; a perfect 1600 SAT result earns just 12 points) if they are African-Americans, Hispanics or Native Americans. The university says preferences granted to these races are not racial preferences but diversity preferences.
It cites as justification Powell's opinion in the 1978 Bakke decision. He said that although racial quotas are unconstitutional, race can be a "plus factor" in admissions decisions, and not merely, or primarily--or even at all--as a remedial measure. Preferences, meaning the radical idea of group as opposed to individual rights, could be used to promote "diversity" for its putative educational value.
The pedagogic justification of diversity based on race is, to say no more, murky. But the murkiness makes it immortal. Racial preferences as a remedy for past discrimination must eventually be considered things of the past. But the value of diversity can be invoked a century from now. Indeed, many people favor the "diversity" rationale for racial preferences precisely because it need never go out of style.
John C. Jeffries Jr. in his fine biography of Powell describes this exchange during the justices' deliberations about Bakke:
"[John Paul] Stevens said that preferences might be acceptable as a temporary measure but not as a permanent solution. Powell agreed. The problem was one of transition to a color-blind society. Perhaps, Stevens added, blacks would not need these special programs much longer, but at this point [Thurgood] Marshall broke in to say that it would be another hundred years. This remark left Powell speechless."
What would Powell make of the many permutations of the "diversity" rationale for racial preferences in the almost quarter of a century since then? As John D. Skrentny, a professor of sociology at the University of California, San Diego, noted in the winter 2002 issue of The Public Interest quarterly:
"Powell chose to embrace the 'diversity' rationale for affirmative action precisely because it avoided the question of which groups had suffered sufficient discrimination to warrant preferential treatment--any underrepresented group could add to the diversity of a student body... Powell suggested that a constitutional 'diversity' preference might, in some circumstances, offer preference to an Italian American."
Or to those who today are even more severely penalized than whites by racial preferences like Michigan's--Asian-Americans. But as Powell wrote in his Bakke opinion:
"There is no principled basis for deciding which groups would merit 'heightened judicial solicitude' and which would not. Courts would be asked to evaluate the extent of the prejudice and consequent harm suffered by various minority groups. Those whose societal injury is thought to exceed some arbitrary level of tolerability then would be entitled to preferential classifications at the expense of other groups."
So "diversity" severed preferences from remediation. And 11 years later Powell was confronted with evidence of how a regime of racial preferences can spin toward absurdity. In 1989, two years after he retired from the court, in a case from Richmond, Va., his home, the court struck down that city's program of racial set-asides in awarding contracts. The court--O'Connor wrote the opinion--held that the program had no rational basis for including, for example, Eskimos as a group deserving recompense for past discrimination. There were no Eskimos in Richmond.
Jeffries writes about the "special friendship" between Powell, the courtly Virginia Democrat, and O'Connor, the Arizona Republican cowgirl who called him "sweet, kind, courteous and thoughtful." Jeffries says the two "often talked and visited, both about personal matters and about the Court." In her graceful eulogy at Powell's funeral in 1998, O'Connor spoke of the delight of dancing with him, and recalled that he said his tombstone would read "here lies the first supreme court justice to dance with another justice."
Perhaps O'Connor, who so often is the decisive vote on this closely divided court, will get the nation off the path of open-ended and eternal racial preferences. Her friend inadvertently put the nation on that path when, generously but improvidently, he helped affirmative action spread beyond the narrow and temporary function of remediation for past discrimination.