TYRRELL: Colorblind justice

Clarence Thomas discerns the line between diversity and equal protection

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For four decades, the American people have been perplexed by affirmative action, quotas, and all the circumlocutions that have accumulated around them. Reading about them is painful. Living with them is worse.

What has the Supreme Court been trying to tell us with these bewildering decisions? What are educators trying to tell us with these policies?

Actually, I think President Kennedy was on the right track at a news conference on Aug. 20, 1963, when he answered a question about the possibility of “job quotas by race” becoming the law of the land. Said JFK, “I don’t think we can undo the past. In fact, the past is going to be with us for a good many years . We have to do the best we can now. That is what we are trying to do. I don’t think quotas are a good idea. I think it is a mistake to begin to assign quotas on the basis of religion, or race, or color, or nationality. I think we’d get into a good deal of trouble. Our whole view of ourselves is a sort of one society.”

We have indeed gotten into “a good bit of trouble” with quotas and with affirmative action. The problems began in the Nixon administration, and they have been multiplying ever since. By trying, as Kennedy said, to “undo the past,” we Balkanized our future. America is now many different little Americas. It is white America and black America. It is male and female — or at least feminized — America. It is Hispanic, homosexual, vegetarian — you name it — America. All a “little America” needs is an imaginative demagogue.

Will we ever be able to get back to Kennedy’s “one society”? It is not going to be easy with all the race hustlers, the ethnic hustlers, the special-pleading hustlers out there trying to make a buck and to speak for their richly elaborated-upon, aggrieved group. Yet there is hope, and this week’s decision in Fisher v. University of Texas at Austin by a 7-1 Supreme Court margin provides a glimmer of hope.

Racial preferences were cemented into law by the 1978 Bakke case. They became even more inscrutable and unreadable with the Grutter v. Bollinger case of 2003. There the court found that, though quotas and affirmative action might be dubious instrumentalities for racial harmony, if some sort of consideration of race furthered “diversity,” they were quite all right. So while quotas and affirmative were frowned upon — at least by nonliberals — some sort of consideration of racial preference was allowed in education for the sake of diversity. You all know how much diversity is celebrated in universities and, particularly, law schools. Wait, you doubt that there is much diversity in academe? Well, what are we talking about then?

We are talking about quotas and affirmative action that JFK did not think was going to go over very well in America. He, of course, was right. Support for affirmative action has evaporated. Just this month in a poll conducted by The Washington Post and ABC News, 76 percent of those polled opposed race-based college preferences. Twenty-two percent favored them. That is about the proportion of the American electorate that is still left wing. They have not had a new idea for years. A similar poll back in 1995 registered roughly the same findings. Dividing people by race is not very popular.

I suppose it is disappointing that in this week’s Fisher decision, the high court did not let affirmative action, quotas and all the painful language and legal arcana that goes with them simply go poof. It could have done so by reversing Grutter. Instead it has directed the lower courts to re-examine the case. Yet affirmative action will again be on the court’s docket when it returns Oct. 1 in a case testing whether states violate the Constitution by abolishing affirmative-action programs. Moreover, the University of Texas could again appear before the court over its racial-preference programs. Let us wish the court’s majority another year of good health.

Yet as the Wall Street Journal editorialized Tuesday, ” the Court could have saved years of trouble and legal cost if it had simply adopted the principle that Justice Clarence Thomas explained in his stirring concurrence. Justice Thomas wrote that he would have overturned Grutter and thus the whole convoluted legal structure of racial preferences as a violation of the Equal Protection Clause of the Fourteenth Amendment.” Justice Thomas’ concurrence is worth reading. He writes very well. In fact, he has written one of the finest memoirs of his generation. Let us raise a toast to that tireless advocate of a colorblind America, Justice Clarence Thomas.

R. Emmett Tyrrell Jr. is founder and editor in chief of the American Spectator and an adjunct scholar at the Hudson Institute.

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