One thing that puzzles me

about the Court’s decision in the Michigan law school case is the use of a racialist analysis to supply the “compelling interest” that justifies the use of racial classifications. Normally when one considers what constitutes a compelling state interest for doing something that the state generally should not do, one thinks of protecting the national security or the public safety or (in this context) of remedying past discrimination by the government. It is odd that the compelling interest the Court uses to justify racial classifications in college admissions is nothing like the normal justifications but instead is itself race-based — namely that a “critical” number of black kids will present certain educationally valuable views because they are black. The reason why race-based classifications are suspect in the first place (and thus require a compelling justification) is because it is odious to judge and then treat people in a particular way based on the color of their skin. Yet the Supreme Court’s compelling justification for judging appliicants for college admissions based in part on race turns out to be the Court’s race-based judgments about how blacks will act on campus.
Another way of looking at this is to consider what the Court’s response would be if a state university tried to justify the exclusion of some black applicants on the theory that, although their credentials are otherwise superior to whites who were accepted, the views they are likely to present (e.g. talking excessively about past injustices) will not enhance the quality of academic discourse as much as the views of the preferred white candidates. In this situation, the Court would not ask whether this justification is weighty enough to support a racial classification. Nor would the Court consider the quality of the empirical evidence presented by the university in support of its thesis. Instead, the Court would reject this “justification” out of hand on the theory that you can’t defend race-based practices on racialist grounds. That’s what the Court should have said in the Michigan cases.


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