Affirmative action is a wrong to correct a wrong. Which is to say, it is a wrong, even if it is intended to do right.
For 35 years now, the Supreme Court has wrestled with this immutable truth. Decision after decision has acknowledged the injustice of affirmative action to those negatively affected by it — while allowing it to continue at state-run universities on the grounds that it does some good.
How does it acknowledge the injustice? By insisting that the use of race as a qualification be strictly limited.
The court did it again yesterday in a minimalist 7-1 decision. It did not revisit previous findings in which it had ruled race could be used as a factor in admissions. But it criticized a lower court for simply accepting the University of Texas’s claim that its admissions policies were constitutional.
The central point of yesterday’s decision is that there must be “strict scrutiny” in these cases to ensure there is as little discrimination as possible, and the lower court did not even attempt to determine whether such strict scrutiny was attempted. The Supreme Court said the lower court “deferred” to the University of Texas, and it should not have done so.
The thing is, the Texas court handled the matter as it did because there is no possible way to defend the University of Texas’s treatment of Abigail Fisher as an individual matter. She was all of 17. She was born in 1991. And she was denied admission to the school because, she says, the school used her whiteness as a key determinant against her.
In 2003, the Supreme Court ruled that race — meaning, of course, being a member of a minority race — could be used as a “plus factor” in a host of factors where admissions was concerned. The University of Texas took this decision and ran with it. But, the Supremes ruled yesterday, “strict scrutiny imposes on the university the ultimate burden of demonstrating, before turning to racial classifications, that available, workable race-neutral alternatives do not suffice.”
This was the question the lower court simply did not consider.
But this sentence indicates the self-destructive nature of the Supreme Court’s ongoing effort to square the circle on affirmative action. The court says the university must prove it has no choice but to use racial classifications. If racial classifications were legal and moral and ethical, why would it need to prove such a thing?
Simple. It needs to prove such a thing because there is no way to reconcile the constitutional requirement to treat individual cases on their own merits with a general social goal of increasing minority and female representation on campuses.
The pursuit of the latter requires the former.
Rarely has an injustice been easier to explain. Two students with exactly the same qualifications come before an admissions panel; one is chosen and one is rejected explicitly on the basis of skin color or gender.
That is the problem, the insuperable problem, with the policy of affirmative action. There is no understanding of justice, not classical and not contemporary, that holds it is fair to penalize an individual in the present to rectify an systemic injustice in the past in which that individual did not participate.
So what happens now? The lower court is required to revisit its finding, and presumably whoever loses that case will seek a new hearing from the Supremes.
The question is how soon the case will get back to the Supreme Court. Will it be before November 2016, or after? What will the ideological composition of the court be when it comes back? Will conservative justices retire or die under Barack Obama and thus shift the court to the left? Will a Republican win the next election and be able to flip liberal seats to the right?
Every time the court takes a new affirmative action case, the world assumes the matter will be settled for good. It never is. America’s legacy of racial bigotry will continue to haunt us, and the rank injustice of trying to make amends by playing games with the fates of young people born three or four decades after the passage of the Civil Rights Act will always discomfit us.
jpodhoretz@gmail.com