Wall Street Journal June 5, 2003 Guess Who’s Coming to Study Opinion piece by JAMES F. BLUMSTEIN The University of Michigan admissions case now before the Supreme Court is billed as being about affirmative action. It is not. Michigan’s legal position does not turn on the status of the minorities who receive admissions preferences. It rests on the benefits to non-minority students who receive a better education because there are more minority students in the milieu. At the court, the issues of diversity and racial preference arise in the context of constitutional law and precedent, so legal background is important. While some issues remain unresolved, the issue of racial reciprocity is settled. Since 1989, the racial reciprocity principle governs in race discrimination cases. “Strict scrutiny,” the most searching standard of review, applies irrespective of the race of the individuals seeking redress. “Strict scrutiny” has two components: the strength of the government’s interest (it must be “compelling”) and the absence of non-racial alternatives. Failure to satisfy both components dooms the program. To approve Michigan’s plan, one must be prepared to say that the plan would be acceptable if blacks or Hispanics were disadvantaged for comparably weighty reasons and under analogous circumstances. If the Michigan program is upheld, the principles applied to that admissions plan must stand the test of racial reciprocity. Up to this point in race cases, the Supreme Court has suggested that the only “compelling” interests are those that remedy past discrimination or offset its ongoing effects. Michigan does not rely on a “remedy” theory, but asserts an affirmative goal — diversity. This type of goal has been rejected outside education, but the question has been unresolved for higher education. Two points warrant emphasis. First, there is a difference between a goal of “diversity” and a goal of “racial diversity.” The goal of “diversity” is racially neutral; specifying the goal as “racial diversity” suggests that race, in itself, is critical in achieving diversity. But a goal stated as that of “racial diversity” is in considerable tension with precedents barring use of race as a proxy for achieving other goals. The court has rejected race-based jury challenges because race cannot be a proxy for life experience or point of view among jurors. Similarly, the court has nixed racial gerrymandering because race cannot be used affirmatively as a proxy for political viewpoint or community. Those cases call into question whether “racial diversity” can be a “compelling” interest. Second, describing the objective of diversity in racial terms commodifies students who receive racial preferences. It justifies their preferred status not on the basis of remedying a racial wrong to that student as a victim but on the basis of the educational benefit to other — white — students. Under the university’s theory, the education of black and Hispanic students is not an end in itself but instrumental to enhance educational experiences for white students. This instrumental rationale for racial preferences undermines media arguments that focus on the “justice” of racial preferences for minority students, whose interests are in fact legally beside the point under Michigan’s theory. In essence, the university excludes entirely some white students on racial grounds in order to provide other (matriculated) white students with the incrementally better education that derives from sitting in class with more black and Hispanic students. If “racial diversity” is problematic, “diversity” is another matter. Diversity embraces non-racial objectives. Universities seek students interested in broad curricular and extra-curricular fields. Students should be exposed to different perspectives, backgrounds and life experiences. Such a view of diversity in a university may be strong enough to be “compelling.” If “diversity” were “compelling,” it would not follow that racial preferences would be required or permitted to achieve that non-racial goal. Since race cannot be used as a proxy for diversity, failure to achieve a “critical mass” of black or Hispanic students does not necessarily compromise diversity. The Michigan case can implement that principle in higher education, in line with previous non-higher-education cases. The important point to remember is that issues tend to come up in unforeseen contexts. Advocates for a hard line on determining what constitutes a “compelling” interest — whether they must be remedial or whether they can be affirmative — understandably worry about leaving ajar the door to raw racial preferences, allowing racial piece-of-the-pie politics to persist. There is another reason to keep an open mind on whether affirmative justifications for the use of race can ever be deployed. The threat of terrorism and the need for infiltration of terrorist groups suggest it may be desirable to retain the doctrinal flexibility to allow affirmative goals such as national security to be deemed “compelling” in justifying certain types of conduct. But an overly hard line on prohibiting affirmative governmental policies as justifications (in narrowly circumscribed circumstances) for racial classifications may have unintended consequences for national security. Should we automatically deny government the option of recruiting only whites to infiltrate and gather intelligence on a group of Timothy McVeighs? Or the intelligence agencies from using only Arab-Americans as operatives to infiltrate al Qaeda cells? Shouldn’t the inquiry in such circumstances be the need to draw such lines based on race? Is it advisable to foreclose entirely the possibility that some affirmative values could justify a classification based on race? With those questions in mind, it is wiser — at this stage — to concentrate on developing an enforceable standard that allows for “diversity” as a goal, but which remains skeptical of the use of race as a proxy for achieving that objective.