Why Judges Can't Hear Each Other on Affirmative Action

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The law says such programs benefit society as a whole. But the judges—on both sides—think of it as a favor that "we" do for "them."

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People supporting the University of Texas rally outside the Supreme Court in Washington, Wednesday, Oct. 10, 2012. The Supreme Court is taking up a challenge to a University of Texas program that considers race in some college admissions. (AP Photo / Susan Walsh)

As families gather around the holiday table, certain topics are taboo. They can instantly transform jovial uncles, charming cousins, and stalwart siblings into slavering, angry zombies, slightly less appealing than extras on The Walking Dead.

Tim Tebow is such a subject. Another is affirmative action. It usually takes no more than one exchange for the cranberry jelly to start flying, along with self-righteousness, accusation, and insult.

And that's just at the Article III judges' table.

At least four members of the Supreme Court are eager to overturn Grutter v. Bollinger, a case only nine years old that upheld the power of universities to consider race in their admissions process. Meanwhile, the Sixth Circuit Court of Appeals has begun another judicial food fight over the issue (the last one led to two investigations of improper behavior).

In its en banc opinion in Coalition to Defend Affirmative Action v. Regents of the University of Michigan, a majority of the court's active judges held that the voters of Michigan violated the constitution by voting for a constitutional amendment providing that the state's educational system "shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin." As Adam Liptak pointed out in The New York Times, the majority includes every Democratic appointee on the court and no Republicans; the dissenters include all the Republican appointees and no Democratic ones. The case is not a pretty sight.

I say that not only because of the evident anger between the sides. I say it also because the language used by both sides illustrates the inability of American law to talk about affirmative action honestly.

To understand why I say that, consider that since the 1978 decision in Regents of the University of California v. Bakke, colleges and universities have been permitted to use race in admissions for one purpose and one purpose only—to secure what Justice Powell in Bakke called exposure "to the ideas and mores of students as diverse as this Nation of many peoples." The Regents, defending their affirmative action program, offered other reasons, mostly centered around the idea of opening graduate education to minorities and boosting their status in society. Powell, however, ruled those interests invalid, and they have remained off the table ever since.

A majority of the Court in Grutter reaffirmed the educational benefits of diversity as the sole interest a university could pursue in an affirmative action program in admissions. In fact, it said, the

benefits [of a diverse student body] are substantial. . . . [T]he Law School's admissions policy promotes "cross-racial understanding," helps to break down racial stereotypes, and "enables [students] to better understand persons of different races." These benefits are "important and laudable," because "classroom discussion is livelier, more spirited, and simply more enlightening and interesting" when the students have "the greatest possible variety of backgrounds."

The quote above gives no indication that affirmative action programs are designed to, or permitted to, benefit minority students in particular. Search the Bakke and Grutter opinions carefully, and you won't find language saying that. Instead, the current law of affirmative action states flatly that consideration of race in admissions is a means to an educational goal: a better learning experience for all the students in the school.

In other words, under the current law, affirmative action is not a favor the majority does for minorities. It is a mechanism we have adopted for the benefit of society as a whole. "These benefits are not theoretical but real, as major American businesses have made clear that the skills needed in today's increasingly global marketplace can only be developed through exposure to widely diverse people, cultures, ideas, and viewpoints," the majority in Grutter said. "What is more, high-ranking retired officers and civilian leaders of the United States military assert that, '[b]ased on [their] decades of experience,' a 'highly qualified, racially diverse officer corps ... is essential to the military's ability to fulfill its principle mission to provide national security.'"

I happen to think that this rationale for affirmative action is perfectly sound. As both our national and global demographics change, America can't succeed if we train leaders who do not know or understand people different from themselves. Affirmative action helps all students learn to do that, and helps all of us by giving us leaders who can do so.

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Garrett Epps is a contributing writer for The Atlantic. He teaches constitutional law and creative writing for law students at the University of Baltimore, and is the author of American Epic: Reading the U.S. Constitution.

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