Supreme Court's Dangerous Mix-Up of Diversity and Affirmative Action

By Daniel M. Levy, Director for Law and Policy, Michigan Department of Civil Rights

Photo by Shutterstock

In October, the U.S. Supreme Court heard arguments in a case asking whether an applicant’s race may ever be considered in university admissions. Based on the justices’ questions and (even worse) the answers, the court appears ready to decide the wrong case. Listening to the argument, one would think Michigan’s universities used “affirmative action” or “racial preferences” in their admissions policies. They do not.

The Case That IS Before the Court

Michigan’s universities have long recognized that a diverse student body serves the academic interests of ALL students. The Supreme Court, in the 2003 Gratz case, declared that designating particular race(s) for special affirmative-admissions advantages is unconstitutional. On the same day, however, the court also issued the Grutter opinion declaring that because student-body diversity is a “compelling interest” of a university, it is constitutional for a school to consider race as one of many admissions factors when diversity cannot be achieved in any other way.

In an effort to nullify the Supreme Court’s ruling in Grutter, Michigan voters passed a referendum amending the state’s constitution to prohibit race-based “preferential treatment” in university admissionseven when racial diversity serves the academic interests of all students and cannot otherwise be achieved.

While Michigan voters may have intended to reverse the court’s Grutter decision permitting diversity, the language they chose covers only the kinds of affirmative action and preferential treatment the court had already prohibited in Gratz.

Diversity and Affirmative Action Are NOT the Same

The court seems intent on treating this as an “affirmative action” case, thereby failing to recognize what you may already be thinking: Although diversity and affirmative action might have similar results, they are fundamentally different in both intent and operation.

A2 is a remedy for past discrimination, intended to correct the wrong done to a minority group by affirmatively offering special advantages to that minority groupeven at the expense of members of the majority. In university admissions, A2 prefers the minority group’s objective of correcting past harms over the majority’s objective of admitting applicants who best advance the interests of the entire student body.

Diversity, in contrast, is not focused on minority concerns. It is designed to benefit all (and particularly majority) students by exposing them to each other. Universities have determined that students benefit academically from being part of a racially diverse student body, and that diversity better prepares students for career success. Most large employers agree, indicating they prefer hiring graduates from racially diverse universities. In short, diversity is sought primarily for the benefit it provides to non-minority students.

So how does a program implemented to benefit white students get branded as anti-white discrimination Simple: Critics seek only the opinions of applicants (or, in this case, the wider public) whose concerns are not focused on the academic reputation of the institution or the academic interests of admitted students. Diversity does not place the interests of one race over another; it puts the interest of all students ahead of applicants.

Diversity Is NOT Racial “Preference”

The Supreme Court phrased its question as whether a state can constitutionally prohibit race-based “preferential treatment” in public-university admissions. Formulated that way, the answer should be “Who cares Gratz already prohibits ‘preferential treatment.'”

When an orchestra determines that it wants to include every instrument, which instrument does it have a “preference” for When diversity is the goal, the only “preference” is for everyone.

Why It Matters

The problem exposed during oral argument was that the constitutionality of prohibiting diversity efforts was debated using only the terminology of affirmative action.

The Michigan law before the court prohibits “affirmative action” and race-based “preferential treatment,” both of which the Court said in Gratz are unconstitutional. Whatever its intent, the wording used in the Michigan referendum merely requires Michigan to do what the court already ruled that federal law requires. Before it evaluates the constitutionality of the Michigan law, the court must determine whether the law will somehow be read to also prohibit universities from pursuing the broad student diversity that serves all students.

Only then can the court properly return to the underlying question: In a state where all admissions policies are determined by university boards based on what’s best for that university and its students, is it constitutional to create a different process requiring a majority vote of the general public for, and only for, policies involving minorities

In Grutter, the Supreme Court explicitly recognized the benefits diversity provides to all students. It must now explicitly recognize what it implicitly recognized 10 years ago by deciding Grutter and Gratz on the same day: There is a difference between affirmative action’s preference for the interests of one race over another and diversity’s raison d’tre, that every group benefits from the inclusion of all others.

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