Saturday, June 21, 2003

Any day now, the Supreme Court will announce its decision on the constitutionality of the University of Michigan’s affirmative-action policies. Advocates for minorities hope the court will

uphold the program. It should not. Such a decision will almost certainly damage the long-term interests of the very groups the proponents of diversity seek to protect.

Consider the implications of such a decision. To uphold the university’s admissions policies, the court would have to find that diversity constitutes a “compelling” state interest; one that is so important the government may treat citizens differently on the basis of their race or ethnicity to achieve it. But if assembling a diverse student body in state universities constitutes a compelling interest, what does not?

Civil liberties groups are currently concerned about the Bush administration’s treatment of Muslims and men of Middle Eastern extraction. These groups decry the special registration provisions that the INS has imposed on residents from Islamic countries, the Justice Department’s practice of arresting men of Arab descent without probable cause and holding them for extended periods as material witnesses, and the administration’s designation of Muslims such as Yaser Hamdi and Jose Padilla as enemy combatants in order to circumvent their constitutional rights as American citizens. They accuse the federal government of engaging in a virulent form of ethnic profiling in its zeal to wage the war on terrorism.

But if the court rules that the government may classify citizens by race and ethnicity to assemble diverse student bodies, how could civil libertarians seriously argue that it may not do so in the interest of national security?

The odious Jim Crow legislation that mandated racial segregation in the South was enacted on the grounds that it was necessary to maintain order and protect public morals. Surely, the last thing minorities should want is for this to again serve as a constitutional basis for discriminatory legislation. But if the court rules that diversity in the classroom is a compelling interest, how could minority advocates reasonably argue that the states’ interest in preventing public disturbances and maintaining civic virtue is not?

Liberal advocacy groups regularly cite the Roosevelt administration’s internment of Japanese-Americans as an archetypical example of invidious governmental discrimination. At a time when there is a real risk that comparable “national security” measures may be taken, is it really beneficial to minorities for the court to make it easier for the government to classify citizens on the basis of race and ethnicity?

Clearly, the supporters of affirmative action want to permit the government to make racial and ethnic distinctions only for benign purposes. But we have been down that road before. When originally adopted, the 14th Amendment permitted benign race-conscious governmental action. The same Congress that passed the Amendment also passed the Freedman’s Bureau Act that provided benefits exclusively to African-Americans.

But once vested with the power to classify citizens by race, politicians quickly learn how to turn it to oppressive purposes. Only 28 years after the passage of the 14th Amendment, the Supreme Court decided Plessy vs. Ferguson, which permitted the states to segregate the races for the supposedly benign purpose of preserving “the public peace and good order.” It took another 58 years of living with Jim Crow and the consequences of the internment of Japanese-Americans for the court to learn that the only way to prevent politicians from exploiting minorities was to deny them the power to classify citizens by race and ethnicity altogether. This was the wisdom embodied in Brown vs. Board of Education.

Advocates for minorities who want the court to extend the government’s power to treat citizens differently on the basis of race and ethnicity must believe that contemporary politicians can be trusted not to abuse this power. This position is strangely at odds with their denunciation of the current administration’s policies and judicial nominees as hostile to civil rights. Disregarding the wisdom of Brown, these advocates would re-embark on the path that led to Plessy, once again confirming that those who cannot remember the past are condemned to repeat it. If they are fortunate, the court will save them from the consequences of their historical amnesia by declaring the university’s admissions programs to be unconstitutional.

John Hasnas is an associate professor of Law at George Mason University and a research fellow at the Cato Institute.

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