Race and the Uses of Law Race and the Uses of Law
By RONALD DWORKIN
April 13, 2001
LONDON-- Why is affirmative action in universities so unpopular when it seems to be working so well? Statistical studies show that the policy has improved racial diversity not only in the classrooms but later in life, in business and the professions, as well, and contributed to improved understanding among races.
Yet the policy has always been controversial, and now it is at risk in the courts. The Supreme Court has repeatedly held that the Fourteenth Amendment's equal protection clause forbids government from making racial distinctions unless it has a "compelling" need to do so. In 1978, Justice Lewis Powell, the swing vote in the Supreme Court's famous Bakke decision, said that a university's need for a diverse student body is indeed compelling.
Since then, however, the court has grown more conservative, and a majority of the court has shown increasing suspicion of affirmative action in the business context. In 1989, for example, the court prohibited Richmond, Va., from favoring black applicants for municipal construction contracts, ruling that the city's interest in improving racial diversity in the construction industry was not sufficiently compelling to justify a race-conscious policy.
Unless the court changes direction, affirmative action is finished as a direct means of securing racial diversity in industry or business. But education is different: diversity is much more important there. Universities have traditionally insisted that diversity of all kinds has educational value. For many decades they have sought to admit students from different geographical areas, cultures and social backgrounds because academic discussion is most profitable and has the most lasting social benefits when it draws on different experiences and perspectives.
Racial diversity is at least as important as diversity in those other dimensions. The Supreme Court may still decide that racial diversity is a sufficiently compelling need to justify affirmative action in education. But until it does decide, one way or the other, the issue will remain unsettled, and sophisticated jurists will continue to disagree. Last December, a federal judge, Patrick Duggan, ruled that the University of Michigan's undergraduate admissions system, which gives minorities added points, is constitutional because diversity is a compelling need in education.
Two weeks ago, another judge in the same court, Bernard Friedman, in a flatly contradictory ruling, declared the more flexible plan of the same university's law school unconstitutional because diversity is not a compelling need. Both decisions have been appealed, and it seems inevitable that the Supreme Court will finally have to resolve the issue. The high court's ruling will be among the most monumental decisions, for American education and society, that it has ever made.
Though the justices' opinions will probably be framed as answers to the legalistic question of whether racial diversity is a compelling need, the underlying question of principle is whether the Constitution's vision of equal citizenship condemns all uses of racial distinction, except by institutions correcting their own past injustices, or whether it permits such distinctions when there is no risk that they reflect prejudice or favoritism or stereotype, and when they plausibly aim to make equal citizenship more genuine.
It is predictable, on the basis of past rulings, that the three most conservative justices--William Rehnquist, Antonin Scalia and Clarence Thomas--will take the former view, and also that the more liberal justices--Stephen Breyer, Ruth Bader Ginsburg, David Souter and John Paul Stevens--will take the latter one. The decision will probably turn on the votes of the remaining justices, who are often described as more centrist: Anthony Kennedy and Sandra Day O'Connor.
I believe the second view is the sounder one, both on precedent and in principle, and that there is reason to hope that the centrist justices will accept it. Why do so many people, including some liberals, resist that view and think that affirmative action, whatever its motives, is unfair and ought to be held unconstitutional? Many of them recognize and endorse the value of racial diversity in education, and hope to find other means to bring it about. Judge Friedman's opinion is a striking and revealing example.
He declares that racial diversity in law school classes may provide "important and laudable" benefits, and that "it would be unfortunate if the number of students from any racial group would decline at the University of Michigan's Law School." He knew that his ruling would sharply reduce the number of black and other minority students, and he therefore proposed that the law school experiment with a variety of colorblind measures that might still achieve racial diversity.
The law school might, he said, put less reliance on standardized test scores for everyone, or choose among "qualified" applicants by lot, or take the students with the best grades from less academically demanding colleges. None of these subterfuges would work, and each would likely cause many of the most qualified and promising applicants, white and minority, to be rejected in favor of less qualified and promising applicants.
How could anyone think such a process preferable to candidly race-conscious programs that aim to admit the most qualified class consistent with an acceptable level of racial diversity? All of us who are not racists--liberals and conservatives alike--have an instinctive tic against explicit racial classifications, which is understandable given our nation's history of racial injustice. But if we really want a more just society, we must be prepared to re-examine this instinct with an important distinction in mind: we must distinguish between policies whose premises deny equal citizenship and those whose premises affirm it.
Of course, no one should be penalized for his or her race, and no race should be thought to have special rights or privileges. Black applicants have no right to preference now because other blacks suffered from injustice in the past. But affirmative action assumes no such right: it has a forward-looking, not backward-looking, justification. The policy promises a better educational environment and a less racially stratified society for everyone.
It recognizes that prejudice has poisoned society for all of us, and that fostering opportunities for different races to study and work together is part of an effective, even if slow- working, antidote. Is affirmative action unfair? Universities are not honor societies rewarding applicants for past achievements. They have a public responsibility to choose students with an eye to the future--students who will contribute to the institution's educational, academic and social goals.
If a university judges that it can offer a better education to everyone if its student body is racially diverse, then its judgment is no more unfair to anyone than its judgment that it can do better with a geographically diverse class or with athletes as well as scholars. It would, of course, be unfair if a university's judgment were corrupted by bias or favoritism, and universities should be required, if challenged, to offer persuasive evidence rebutting any such claim.
But no one's rights are infringed when a university makes an honest and uncorrupted decision about how best to meet its academic responsibilities.
Copyright 2001 The New York Times Company
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