Is it possible the Supreme Court will prohibit racial preferences? And why they might not.

(Note: this entry was originally posted yesterday, but with all the attention on the presidential debate I have a feeling it was not noticed, so I’ve moved it up to the top of the main page.)

Here is an e-mail I sent yesterday to philosophy professor Carl Cohen, who has been on the faculty of the University of Michigan since 1955.

Dear Professor Cohen:

Yesterday I read your article in The Weekly Standard about the Fisher v. University of Texas case. You summarized the many amicus briefs which demonstrate that diversity in student bodies does not achieve the good things that it claims to achieve, and that, further, it harms its intended beneficiaries. You said that it was very likely that the Supreme Court, in deciding on Fisher, will overturn the egregious 2003 Grutter v. Bollinger decision. (By the way, here is my article, “Grutter: A revolutionary decision that must not stand,” which was published in Ward Connerly’s newsletter and at FrontPage Magazine.)

You concluded your article with the point that racial discrimination, namely the racial discrimination that is committed against whites in order to achieve diversity, can only be justified by a “compelling state interest,” and that the balance of the facts shows that there is no such compelling interest, and therefore the Supreme Court might prohibit all racial preferences in higher education. In a rational world, you would be correct. But it occurs to me that the Court could very well find such a compelling interest. Not in relation to any of the considerations that the amicus briefs dealt with, but in relation to the actual motivating impulse that drives racial preferences. And what is that motivating impulse? The moral imperative in the hearts of liberals that high-level schools MUST have a large number of blacks and Hispanics—the feeling that, as Nathan Glazer once put it in a disgraceful article, it is simply unacceptable to the conscience of decent people for the student body of an elite university to be almost all white and Asian.

Now of course that argument has never played a role in the judicial cases on racial preferences. There is no history of anyone making such an argument in Bakke, Grutter, Gratz, and so on. So, you may ask, how could it be a decisive factor in the upcoming Fisher case? Consider this. Prior to the Supreme Court’s decision on Obamacare, had anyone made the argument that the penalty for not obeying the individual mandate to buy health insurance was a tax, and that the Congress has the unrestricted power to tax, and therefore Obamacare is constitutional? No. John Roberts simply came up with that absurd and outrageous argument in order to get to the result that he wanted, which was approval of Obamacare. So why shouldn’t Roberts do the same thing in the Fisher case, i.e., simply declare that it is unacceptable to the conscience of decent people that blacks and Hispanics not be represented in elite universities, and that avoiding this unacceptable result is a compelling state interest, and therefore racial preferences are constitutional?

Of course, such an argument would be entirely irrational and with no basis in precedent. But the reality is that our country and our courts are no longer governed by reason, law, and the Constitution, but by what people (i.e. liberals) want. And what they want is diversity. And therefore the people in charge will use any argument, no matter how absurd, to protect diversity.

I am not predicting that the Supreme Court will do as I describe. I am saying that I regard it as entirely possible that they will do it. After the Obamacare decision, anything is possible.

Sincerely yours,

Lawrence Auster
View from the Right

Posted by Lawrence Auster at October 05, 2012 12:41 PM | Send