Yesterday, supporters of affirmative action in admissions got a reprieve. The Supreme Court voted 7-1 to return the case to the 5th Circuit for reconsideration. But that reprieve won’t change the ultimate calculus that spells the doom of affirmative action in school admissions. The problem is a fundamental contradiction between the allowed reason for such policies and the allowed means for carrying them out.
It All Goes Back To Bakke
Beginning with Regents v. Bakke (1978), the court has held that there is one constitutionally permissible reason for schools to favor some applicants on the basis of race: that diversity in the classroom improves educational outcomes for all students. This was actually not high on anyone’s list of reasons for the policy in the years before Bakke. Instead, schools adopted such policies for a variety of social justice and anti-discrimination reasons. But this was the most acceptable reason for Justice Powell, whose vote was the deciding one in the crucial case.
But Bakke also ruled on the method by which schools could achieve this end. Well, more accurately, it ruled out any type of quota system. This is, of course, the most obvious way to achieve the desired (and allowed) aim of classroom diversity. Furthermore, in subsequent cases, the Court has applied this concept broadly. Though we are not there yet, the ultimate logic of this limit will be that schools cannot take any action in admissions that purposefully privileges applicants of one race over another. At that point, any direct attempt to actually achieve the Constitutionally acceptable goal of diversity in the classroom will be automatically disqualified.
A Losing Battle
In retrospect, those in favor of using race in school admissions made a huge strategic error when they accepted Bakke‘s reasoning and focused on inventing and defending non-quota means of achieving diversity in the classroom. Instead, they should have focused their efforts on getting their social justice concerns recognized as a constitutionally permissible ends, ones that are strong enough to support questionable means. It would have been a difficult battle, but difficult is better than doomed.