High court's decision courageous, not cowardly

Posted: June 25, 2013

"PUNTED." That's the word one commentator used to describe the high court's decision yesterday remanding the hot-potato affirmative-action case back to the lower court. Others called the move "sidestepping," "passing the buck" and "cowardly."

Or, as columnist John Podhoretz helpfully noted on Twitter: "Supreme Court on affirmative action: bock bock bock."

With all due respect to the great Podhoretz, a man with whom I rarely disagree, that's way too simplistic a reading of the court's ruling.

In fact, anyone who thinks that judges should not be in the business of substituting their own personal preferences for empirical evidence (something that tragically happened in Roe v. Wade) should be giving the seven justices in the majority a standing ovation. The only one who should be criticized is Ruth Bader Ginsburg who, as usual, took out her good-fairy wand and tried to sprinkle equality dust on the world.

What the majority did in Fisher v. University of Texas was an exercise in both common sense and fairness. The plaintiff in that case, Abigail Fisher, had challenged an admission policy that allowed the University of Texas to use race as a factor in accepting certain students with the goal of achieving "diversity."

Even though this was only a relatively small part of the admissions scheme, Fisher sued to have the program invalidated on the grounds that it impermissibly used race to convey a benefit. This, she argued, was unconstitutional.

Supporters of the program, including pretty much anyone who thinks that the playing field is still tilted in favor of white males, tried to differentiate between the "invidious" (and therefore evil) discrimination outlawed by Brown v. Board of Education, and the more "benign" type of discrimination that actually helped minorities. The problem is, they ignored the fact that in "helping" minorities, someone else had to be "hurt."

The court refused to make any grand pronouncements along the lines of Brown, but it did something infinitely more useful. Writing for the majority, Justice Anthony Kennedy decided to put the University of Texas to its proofs, asking, as Cuba Gooding Jr. once did, "Show me the money!" In other words, the court wasn't about to just accept the assurances of the university that using race was crucial in promoting the necessary diversity. As Kennedy wrote, "the university [must] verify that it is necessary for [it] to use race to achieve the educational benefits of diversity."

Not exactly earthshaking stuff, but neither, as Podhoretz implies, is it cowardly.

The court came out and drew a bright line that requires that anyone who thinks race is relevant must actually show the level and nature of that relevance. Under this new standard, we can't just assume that because you start including people because of race (or, taken to the natural extension, gender, sexual orientation or religion) we will then achieve some diversity nirvana where little children dance hand-in-hand on a (finally) level playing field. It is also wrong to ignore the harm caused by judging people based upon immutable characteristics, as we already figured out in Brown.

Clarence Thomas noted as much when, in his concurring opinion to the majority decision, he observed that "Racial engineering does in fact have insidious consequences. There can be no doubt that the university's discrimination injures white and Asian applicants who are denied admission because of their race. [And] blacks and Hispanics admitted to the University as a result of racial discrimination are, on average, far less prepared than their white and Asian classmates."

I would hardly call that a "cowardly" comment. In fact, it is a sign of rare courage, particularly coming from an African-American justice who probably owes much of his professional success to prior incarnations of affirmative action.

The fact that the court is saying it will not simply defer to the vague and dangerously ambiguous good intentions of the academic social engineers is a step in the right direction. As we saw in Roe, any time that a bunch of elevated lawyers think they are the best arbiters of medicine, science, math and other disciplines that they don't teach in law school, they create havoc. Roe is the bitter fruit of what some arrogant justices once sowed.

For that reason alone, this majority decision should be celebrated and appreciated. While many on both sides would have probably preferred a more definitive announcement about affirmative action, a judicial yea or nay, the court took the high road in forcing society to take a long, hard look at what we're really doing when we start treating people as a function of their skin color.

They gave us some homework to do. They told us to add up the figures. They aren't letting us cut corners for an easy "A." Good for them.

Christine M. Flowers is a lawyer.

Email: cflowers1961@gmail.com

Blog: philly.com/flowers

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