Dwarkin on the Michigan Case

Old Blog Import

But race matters independently of the other background factors with which it may or may not be correlated, for two reasons. First, the experience of a black person in American society is special, and cannot be duplicated by the experience of a white person of similar economic or social background; it is pedagogically important that the perspectives of that distinct experience be available to students of history, politics, and society who would not otherwise encounter it. Second, learning that race is not correlated with stereotypical perspectives —learning, for example, as Justice Stephen Breyer put it during the oral argument, that a black student may be a rich Exeter graduate and a conservative Republican—is itself of educational value, and that lesson about stereotyping may well be best learned from direct experience. …

The second constitutional test asks whether these goals, assuming they are compelling, could be achieved in other ways, that is, without racial classifications. As I have said, the Bush administration argued that Michigan could achieve racial diversity through devices like the Texas plan, which automatically admits a given percentage of the top students of the graduating class of each high school in the state. But these devices are patent subter-fuges. They are as much based on racial criteria, though covertly, as plans that appeal to race openly like Michigan’s; as Justice David Souter said during the oral argument, if the purpose is to increase the percentage of minorities, “then whatever it is, it’s not a race-neutral measure.” Such programs depend on and therefore presuppose the continuation of de facto racial segregation in high schools, moreover, which is in itself objectionable, and they are perverse because they require universities to pass up the more qualified black applicants that openly race-sensitive criteria would admit in favor of less qualified ones from segregated schools.

… The third constitutional test I have mentioned asks whether Michigan’s plans are “narrowly tailored” to the goals it cites as compelling. … the fact that damaging racial imbalances may persist is hardly a reason for prohibiting one of the most effective strategies for reducing those imbalances. As an amicus brief filed by eight of the most prominent American universities and colleges pointed out, “The proper constitutional concern would thus seem to be whether the selected means outlast the interest they are designed to serve, not whether they go on ‘too long’ in some abstract, undefined sense.”

Read the Full Article in the New York Review of Books