What part of the Constitution’s equal protection clause under the 14th Amendment does the majority of the Supreme Court not understand? Based on a ruling this week, all of it.
“No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws,” says Article 1 of that amendment.
The emphasized clause has been interpreted to mean that laws, rules, regulations or policies of federal, state, local and county governments, as well as those adopted by the private sector, cannot favor one person over another, if that decision is based on race, creed, color, religious beliefs or orientation. Now, however, the nation’s highest court has changed it.
On Monday, justices ruled that the University of Michigan can consider race in its admissions policies, as a way of achieving the government’s “compelling interest” of “diversity” in public higher education.
The Constitution “does not prohibit the law school’s narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body,” wrote Justice Sandra Day O’Connor, for the majority.
“This court has long recognized that ‘education is the very foundation of good citizenship’,” O’Connor wrote, quoting from the landmark Brown vs. Board of Education ruling of nearly 50 years ago, which ended public school segregation.
The ruling ended a six-year legal battle in which two white women sued the university after their law school applications were rejected. The university gives special consideration to minorities. While the high court struck down a points system giving automatic credit to minorities, it upheld the concept of using affirmative action to bolster minority attendance.
“For this reason, the diffusion of knowledge and opportunity through public institutions of higher education must be accessible to all individuals regardless of race or ethnicity,” she wrote. “Effective participation by members of all racial and ethnic groups in the civic life of our nation is essential if the dream of one nation, indivisible, is to be realized.”
If you found Justice O’Connor’s explanation contradictory and pained, you’re not alone.
First, this case was never about “diffusion of knowledge and opportunity” or even accessibility to higher education. It was supposed to center around whether the consideration of race is constitutional, and in that vein, the court completely dodged the question. Though O’Connor drones on about “effective participation” for everyone “in the civic life of our nation,” she and the court’s majority ignored whether the school’s process of selecting students was inherently racist.
There should be no objection to a university (or an employer, for that matter) setting admissions standards. How else can we measure a candidate’s qualifications if we can’t set benchmarks?
But any so-called “affirmative action” policy is, by its very nature, racist and exclusive, regardless of the nobility of liberal intentions behind them.
Think of how difficult it is to imagine an institution or employer rejecting a candidate or applicant because they are black or Hispanic, to the favor of a white person, even if the institution or employer is already made up mostly of blacks or Hispanics.
And that begs the question: If our nation’s highest justices can’t envision that kind of scenario passing constitutional muster – and you know they couldn’t – how can they justify a ruling that in any way rewards one race over another?
The fact that a person may be a member of a minority is beside the point. The Constitution and our laws are clear: No man or woman in America can be the focus of legalized, sanctioned discrimination, intentions aside. And anytime race is a consideration, someone is going to be the subject of discrimination.
Does this mean some qualified persons of all races won’t be selected for jobs or institutions of higher education? Yes, it does. But if color of skin isn’t an official consideration, chalk up a lost opportunity to bad luck or bad timing or lesser qualifications.
The two white women who sued the University of Michigan had a case, and it’s a case they should have won. Maybe they wouldn’t have made the cut anyway, but since minorities were intentionally given preferential treatment, we’ll never know.