In December 1996, Sandra Day O’Connor came to the University of Michigan to receive an honorary degree. Walking through the basement of the law school with an associate dean, she saw that the walls were plastered with notices from various race- and gender-based groups. “She was appalled,” recalled the dean, Kent Syverud. “Is this what diversity is going to be all about?” she asked him. She disliked victimhood and identity politics, which she saw as undermining her ideal of an all-inclusive civil society. Syverud, who had once been an O’Connor law clerk and is now president of Syracuse University, characterized O’Connor’s views on racial remedies as “Reparations? Terrible! Victim-based solutions? Ugh.”
O’Connor, the first woman Supreme Court justice, might have seemed like a natural candidate to vote against racial preferences in university admissions. Indeed, as a Goldwater Republican appointed to the Court by Ronald Reagan, she wrote the majority opinion striking down quota-like “set asides” for minority contractors by the city of Richmond in the Croson case in 1989, and for federal minority contractors in the Adarand case in 1995. But she cast the decisive vote to uphold affirmative action in higher education in a 2003 case, Grutter v. Bollinger, a precedent that still stands. (By coincidence, the case involved the University of Michigan Law School.) As another one of her former law clerks, Andrew McBride, put it to me, “She didn’t like affirmative action, though she was the one to save it.”
With O’Connor long gone from the bench (she retired in 2006) and a conservative majority solidifying on the Court, the conventional wisdom has become that racial preference is doomed in higher education. But O’Connor’s struggles over this difficult issue illuminate why it will not be easy to stop the consideration of race in admissions at publicly funded institutions.