Virtually every page of Justice O’Connor’s opinion in the Michigan law school case yields evidence that the Supreme Court has lost its moral compass when it comes to racial discrimination. The disorienation starts as early as the second page, when the Court lumps together “soft variables” in the admissions evaluation process that “are all brought to bear in assessing an applicant’s likely contributions to the intellectual and social life of the institution.” The soft variables cited are the enthusiasm of those who recommend the applicant, the quality of the undergraduate institution attended, the quality of the applicant’s essay, the areas and difficulty of undergraduate course selection, and (on page 3) whether or not the applicant belongs to a group that will not be “meaningfully” represented on campus without the use of preferences.
Let’s play “which of these things is not like the others?” All but the last “soft variable” relate (in most cases directly) to merit. All but the last relate to what the applicant will contribute to the university by virtue of the content of his or her character not by virtue of skin color. I guess some variables are softer than others.
The Court engages in the same mixing of applies and oranges later in its opinion on page 26. This time it lumps racial identity together with living or traveling abroad, fluency in several languages, the overcoming of adversity or personal hardship, an exceptional record of community service, and a successful career in another field. Again, most of these variables are entirely merit based. Only living or traveling abroad can be compared to racial identity, in that it has more to do with happenstance than with merit, and goes to what the applicant will “contribute” in terms of “diversity” rather than intellectual or moral capacity. But I’d bet that the Univeristy of Michigan isn’t looking for a “critical mass” of people who have lived or traveled abroad and that the “plus” one receives for doing so is minuscule compared to the plus one gets for being black.
All of which shows how trenchant Justice Thomas’s warning is — the more liberties the Court takes in characterizing racial preferences, the easier it becomes for the government to find justifications that will enable it to engage in new forms of racial discrimination. A facile intellect is no substitute for a moral compass.
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