Announced June 23, 2003, the Supreme Court’s ruling in Grutter v. Bollinger takes the constitutional quicksand of the Bakke decision and turns it into a swamp the size of the United States. It institutionalizes at the broadest national level a type of intellectual bad faith never before seen or imagined in this country — the sort of cynical, all-pervading dishonesty that characterizes, not a free country under the rule of law, but an ideological regime. Such deception is inherent in a revolutionary act of judicial legislation such as Grutter, in which the Court, despite the Constitution’s clear prohibition on racial discrimination by the state, has injected into the Constitution a justification for race preferences that could affect not only public universities such as the University of Michigan, but every sector of government and society.
In the present article I want to draw attention to two specific lies, or rather two complexes of lies, that inform Grutter and the statements of its liberal supporters. The first lie consists of the underlying “educational diversity” argument, which is the Court’s entire constitutional justification for the use of racial preferences in higher education. The second — and more serious — lie consists in the fact that this supposed constitutional justification is a transparently false pretext that the Court and the liberal elites are using to introduce a system of racial socialism into America. The constantly shifting arguments used by the Court and the diversity advocates make it hard for people to understand the real significance of what the Court has done, and thus may partly account for the passive and quiescent response of many conservatives to this catastrophic ruling.
The diversity rationale
The “educational diversity” argument — going back to Justice Lewis Powell’s famous dictum in the 1978 Bakke case and now adopted by a majority of the Court — claims that the presence of a certain indeterminate number of non-whites in an undergraduate or post-graduate program helps provide an intellectual and social diversity that students, or, rather, white students (since whites are not considered part of the diversity but rather the experiencing subjects of it), need to experience if they are to be prepared for positions of leadership in our racially diverse society. The nation’s future, wrote Powell, “depends upon leaders trained through wide exposure to the ideas and mores of students as diverse as this Nation of many peoples,” a phrase that anticipates by more than a decade the multiculturalist slogan, “One Nation, Many Peoples.” Grutter further expands the claimed educational benefits of diversity to include the encouragement of “cross-racial understanding,” the breaking down of “racial stereotypes” (another clue that prejudiced whites are the intended beneficiaries of the diversity experience), and the development of the “skills needed in today’s increasingly global marketplace” — skills that require exposure to “widely diverse people, cultures, ideas, and viewpoints” (again we see the suggestion that it is non-diverse whites who need exposure to “widely diverse” nonwhites). As Powell put it, intellectual diversity is the permissible educational object, and racial diversity one factor among several that help schools attain that object. Yet, as we look over the Court’s various formulations of the educational benefits, we notice that the object to be gained — competence for a multiracial world — seems to be virtually inseparable from the racial diversity which is the means used to attain it. Thus the majority at one point speaks of the “compelling interest in securing the educational benefits of a diverse student body,” yet elsewhere says that “the Law School has a compelling interest in attaining a diverse student body.” [Emphasis added.] Despite these glimpses — whether they be deliberate or inadvertent — into the real goal that hides behind the Court’s formal reasoning, the Court for the most part strives to stay within Powell’s guidelines, maintaining that that racial diversity is not the end, but only a means to reach the end.
And what an end it is. According to Powell in Bakke and Justice Sandra Day O’Connor writing for the majority in Grutter, student intellectual diversity with its various benefits is of such fundamental importance that the effort to achieve it (by means of racial diversity as one factor among others) constitutes a compelling governmental interest overriding the constitutional prohibition on official racial discrimination, namely the equal-protection clause of the Fourteenth Amendment which declares that “No State [or state supported institution] shall . . . deny to any person within its jurisdiction the equal protection of the laws.” We need to understand that Justice Powell specifically rejected all other proffered justifications for discrimination against whites in school admissions, including such “social-justice” goals as overcoming the effects of past discrimination or achieving racial diversity in the student body. Today’s Court, basing itself on Powell’s opinion, approvingly sums up Powell’s rejections of the various proposed excuses for racial discrimination:
First, Justice Powell rejected an interest in “’reducing the historic deficit of traditionally disfavored minorities in medical schools and in the medical profession’” as an unlawful interest in racial balancing. Second, Justice Powell rejected an interest in remedying societal discrimination because such measures would risk placing unnecessary burdens on innocent third parties “who bear no responsibility for whatever harm the beneficiaries of the special admissions program are thought to have suffered.” Third, Justice Powell rejected an interest in “increasing the number of physicians who will practice in communities currently underserved,” concluding that even if such an interest could be compelling in some circumstances the program under review was not “geared to promote that goal.”
But here comes the bizarre twist in Powell’s opinion. Having held that racial discrimination against whites was not justified on any of the enumerated grounds, including the remedying of societal discrimination, Powell nevertheless insisted that it was justified by the educational benefits that accrue from intellectual diversity. This extremely peculiar dictum was issued as a concurrence to the majority decision and therefore lacked any formal legal authority. Yet it handed the affirmative action advocates an escape route from their apparent defeat in Bakke. The majority decision as well as Powell’s concurrence had firmly precluded the approach favored by the AA advocates (and by the Court’s minority), which was to permit race preferences on “social-justice” grounds pure and simple. However, Powell’s ambiguous opinion provided the diversiphiles with a less direct means to carry forward their egalitarian agenda: instituting de facto racial quotas under the legal façade that race was only being employed as one factor among others to achieve the desired educational benefits. This finesse would allow the universities to seek racial proportionality for its own sake, so long as they denied that they were doing so. And that is exactly what the universities proceeded to do for the next 25 years. The University of Michigan stands solidly within that dishonest — but by now thoroughly established and respectable — tradition. As Justice O’Connor writes for the Court in Grutter:
Before this Court, as they have throughout this litigation, respondents assert only one justification for their use of race in the admissions process: obtaining “the educational benefits that flow from a diverse student body.”
Let us be clear that the “diversity” O’Connor speaks of in this passage is not, at least initially, racial diversity per se, but, in line with Powell, the whole range of possible human diversity — regional, religious, and intellectual as well as ethnic and racial. It is the presence of all these types of diversity in a student body that serves as a catalyst to help attain such goals as a “robust exchange of ideas” (Powell) or the breaking down of “racial stereotypes” (O’Connor). But while each of these kinds of diversity is thought to provide at least some of the enumerated educational benefits (such as a robust exchange of ideas), only one type of diversity requires the systematic selection of less qualified students of one race over more highly qualified students of another race. Such racial discrimination by a state school is permissible, the Court says, if it helps eliminate racial stereotypes or leads to some putative increase in the intensity of intellectual interchange among students.
As absurd and outrageous as it sounds, that is the entire substantive argument on which Grutter rests. The sheer weirdness of the idea — or, to be more precise, its stark cynicism and opportunism — is underscored by Justice Thomas in his dissent. Prior to Bakke, he remarks, a state interest compelling enough to allow the government to engage in official racial discrimination had been found in only two, narrowly defined areas of special urgency: government measures aimed at providing for national security and preventing violence, and government efforts to rectify the effects of past discrimination that had been committed by the government itself. Yet now the Court is allowing racial discrimination to achieve something as vague and tendentious as an alteration in students’ racial attitudes.
A further oddity of Grutter is that a school’s right to discriminate among applicants by race is based on a university’s academic freedom under the First Amendment to choose its own subject matter, faculty, and students. “The law school’s educational judgment that such diversity is essential to its educational mission is one to which we defer,” writes O’Connor. “Our holding today is in keeping with our tradition of giving a degree of deference to a university’s academic decisions . . . “ This non-expert reader finds himself baffled by the notion that student diversity is both a discretionary choice on the part of a state university, and a governmental interest so compelling that it mandates official racial discrimination. Justice Thomas meanwhile is both bemused and indignant at the blatantly ideological manner in which the Court has applied this standard. He notes that the Court ordered the Virginia Military Institute to stop excluding female applicants, even though sex discrimination is not subject to the same level of scrutiny as race discrimination, and even though VMI had demonstrated to the Court’s satisfaction that the presence of female students would force the school to alter or abandon its long established “adversative” method of education; yet the Court now allows Michigan to engage in racial discrimination against whites, and all for the weird and marginal purpose of enriching the learning experience of other whites, by including a “critical mass” of less qualified non-whites among them.
This patently unjust and irrational practice, and the establishment’s need to defend it at all costs, has a deeply corrupting effect on our whole society, made all the more degrading because almost everyone today seems to take the corruption for granted. Consider the approach employed by ABC’s Good Morning America. Appearing on the show the day after the Grutter decision was announced last June, the defeated plaintiff, Barbara Grutter, reiterated her position that the University of Michigan Law School had discriminated against her. By way of rebuttal, the program played a video tape of white and minority students at the law school talking about how much they appreciated diversity and what a marvelous part it had played in their education. It didn’t seem to occur to anyone that this was a patently offensive way of framing the issue. First, there was the stark amorality of suggesting that Barbara Grutter should not complain about being racially discriminated against — after all, look at all these students who say that they benefited from the university’s choice of a less qualified minority over her! Second, there was the blatant bias of including in the interview only those students who had been successfully admitted to Michigan; how about putting together a group of applicants who had been rejected by the school despite having better scores than the minority students who were admitted in their stead, and asking them how they like diversity? Third, there was the totalitarian implication of asking law students in contemporary America — and on camera no less! — how they “feel” about racial diversity. Does anyone imagine that the students are going to say that they don’t like it? That would be like putting white students at an elite law school before a camera and asking them if they think that their black fellow students are as academically capable as themselves. Thus the pro-diversity argument offered by the students was inherently selfish and immoral; the sampling of interviews was biased in that it only included the winners of the diversity maze; and, as in some show trial in the Soviet Union, the answers were elicited by asking ambitious young people a question to which there was only one non-career-killing response. Yet this is what our mainstream culture, following the Supreme Court’s moral and constitutional logic, considers a proper way to to reply to a victim of official racial discrimination — if she’s white.
A more objective index of student attitudes can be found in an important study by Stanley Rothman, Seymour Martin Lipset, and Neil Nevitte, published in The Public Interest and Academic Questions, and also referenced in Justice’s Thomas’s dissent. Without questioning the students about diversity per se, Rothman and his colleagues simply asked them how they rated the education at their respective colleges. The researchers found that the greater the racial diversity at a school, the less satisfied students were with their educational experience there. This should come as no surprise, since the greater the number of underqualified students, mainly blacks, who have been admitted to a school because of their race, the more pronounced the complaints from blacks and liberal whites about the supposed white racism that is allegedly preventing the blacks from achieving at the same level as other students. (A situation at Yale Law School that fit this description has been recounted in Commentary by columnist Jonathan Kay, a Yale Law graduate.) A further refutation of the idea that “mutually diverse students enrich each other’s educational experience” is the well-known phenomenon of voluntary ethnic group separatism on today’s campuses (as described at National Review Online by James Justin Wilson, himself a recent graduate of the University of Michigan.) So, not only is the “educational benefits” justification for anti-white discrimination without basis in the Constitution, not only is it unjust and immoral, but the benefits themselves are nonexistent — unless the “benefits” of diversity simply consist of the diversity itself. All of these objections were ignored by Justice O’Connor, who uncritically subscribed to the assurances by Michigan and other schools that student diversity provides indispensable “educational benefits.”
The Larger Deception
Underlying the various frauds and outrages associated with the “intellectual diversity” rationale, there is the “meta” lie of the Bakke and Grutter regime, the 800-Pound Lie, the Mother of All Lies. I am referring to the fact, touched on previously, that the very goal the Court says justifies racial discrimination against whites — i.e., a student diversity that in turn produces certain educational benefits — has absolutely nothing to do with the real goal of the pro-diversity elites. Their real goal is, unsurprisingly, exactly what it has been all along: the collective social and economic equalization of blacks, Hispanics, and other “underrepresented” minorities, by any means that will work. Using racial discrimination as the means to achieve that goal is, of course, explicitly disallowed by the controlling Court decisions, as it is by the most basic American beliefs in fairness and individual rights. The diversity supporters must therefore lie about what they are up to, as unprincipled people tend to do when they very much want something that they can’t get if they speak the truth.
But here we enter Deep Orwell Country. Even as the liberals conceal their real purpose in the manner of ordinary deceivers, they do not conceal it at all. In their joyous responses to the Grutter decision, for example, the civil rights advocates unabashedly cheered what they saw as a historic victory of racial diversity and equal opportunity (by which they meant racial quotas), even while they continued to give fulsome lip service to the Court’s official justification, educational benefits. A variety of motivations could be adduced for liberals’ resort to these mixed messages. If they let on that the only purportedly Constitututional basis for discrimination against whites was not racial justice or remedying discrimination, but “educational benefits” (the supposed main beneficiaries of which are white!) the diversity regime would quickly lose any color of moral legitimacy in the eyes of the public. Also, the liberals seemed impelled to speak in terms of racial justice and overcoming discrimination because it’s what they themselves really believe, it’s what has driven them from the start, it’s what they want other people to believe and to accept as the organizing principle of our society. Yet they couldn’t say any of this too clearly, because then the official reason for the decision, educational benefits, would be exposed as the fraud that it is and the whole house of cards would come tumbling down. So the affirmative action supporters kept moving back and forth, combining the official, educational-benefits argument with rhetorical appeals to ideals of racial equality that have no connection with, and are prohibited by, the Court’s core legal reasoning. These contradictory assertions were melded so smoothly into the diversiphiles’ rhetoric that most members of the public were unlikely to have any idea of the trick that was being played on them.
Thus, at an informal press conference outside the Supreme Court building on the day the decision was issued, Theodore Shaw of the NAACP Legal Defense Fund spoke buoyantly about the Court’s approval of “racial justice” and “racial diversity” in our universities. Wade Henderson of the Leadership Conference on Civil Rights said this “great day for equal opportunity” had established the principle that “affirmative action is a critical tool that can help universities achieve a student body that is diverse. The court has made clear that affirmative action is a legitimate tool to achieve equal opportunity.” By “equal opportunity,” Henderson clearly did not mean an absence of anti-black discrimination, since no one had contended that Michigan had engaged in or would engage in anything of the kind); he meant group equality of results. Meanwhile, Senator Charles Schumer reacted to criticism of the decision by asking: “How can overcoming racial discrimination be seen as discrimination against white people?” He thus let on that the goal was to end alleged racial discrimination against minorities, even though the decision itself had said that ending anti-minority discrimination was not a justification for minority racial preferences.
The misrepresentations reached a peak in a celebratory op-ed in the Washington Post by the former president of the University of Michigan and the defendant in the Grutter suit, the prince of diversiphiles himself, Lee Bollinger. Apart from his obvious pleasure at being vindicated by the Supreme Court, Bollinger had more particular reasons for singing the praises of diversity, having obtained his exalted perch as the president of Columbia University chiefly because of his assiduous devotion to race preferences at Michigan (a common type of “educational diversity benefit” that the Court in Grutter somehow neglected to mention). In the key passage of the article, Bollinger juxtaposes the social-justice argument and the educational-benefit argument and makes them merge into one:
[T]he court has helped ensure that public and private colleges and universities in the United States will remain accessible to all Americans of all backgrounds. And it has helped ensure that American higher education will continue to educate our youth for the increasingly diverse world they will inherit.
The first sentence tells us that the universities will remain “accessible” to all Americans as a result of Grutter. But what could this mean? No one had charged that the University of Michigan or other elite universities, even in the absence of affirmative action, will be inaccessible to minorities in the sense of deliberately keeping them out or applying harsher admissions criteria to them than to whites. Since the continued “accessibility” of which Bollinger speaks does not mean non-discrimination against racial minorities (which is already assured), it must mean guaranteed proportional representation of racial minorities. Conversely, a lack of equal racial representation at a school such as Michigan (which might have been the consequence had racial preferences been outlawed there) would, according to Bollinger, make the school “inaccessible” to minorities. To say that a school is “inaccessible” to minorities suggests to the mind of the average person that the school is discriminating against minorities. Thus, without his actually saying so, Bollinger plants in his readers’ minds the idea that proportional representation is the only way to eliminate discrimination — even though the Court’s own jurisprudence has declared that race preferences cannot be used for that purpose, and even though no one has actually alleged such discrimination in any case.
But in the second sentence of this two-sentence pairing, Bollinger makes an entirely different point. “American higher education,” he writes, “will continue to educate our youth for the increasingly diverse world they will inherit.” In other words, the Court is ensuring for students a “diverse” educational experience with its various mystical benefits! Thus, having milked the real though officially impermissible argument for race preferences in the first sentence, Bollinger has quickly switched back to the officially permitted though unreal argument in the second sentence — a triumph of doubletalk for which Bollinger was at absolutely no risk of being called to account by anyone in the respectable precincts of liberal society.
Sadly, it is not only civil rights attorneys and politically fashionable university presidents who have legitimized Grutter in the popular mind by attributing to it an egalitarian purpose eschewed by the Supreme Court’s own legal reasoning. The Court itself has done that. As we’ve already remarked, Justice O’Connor writing for the majority declares that the only compelling state interest allowing a university to discriminate against whites is the enumerated educational benefits. But O’Connor doesn’t stop there. Ignoring the rule she has just laid down, she blandly proceeds to enunciate a whole series of quite different — but also supposedly compelling — reasons for discriminating against whites:
- The armed forces must have a racially representative officer corps in order for minority enlisted personnel to see the officers as “legitimate.” Since officers are recruited from elite service academies and the ROTC program in the universities, those institutions must include a proportionate number of minority students.
- The nation’s legislatures and courts, which derive their members largely from the top law schools, must have a “path to leadership” that is “visibly open to talented and qualified individuals of every race and ethnicity. All members of our heterogeneous society must have confidence in the openness and integrity of the education institutions that provide this training.” In other words, in the absence of proportional racial representation in our governing institutions, minorities won’t have confidence in the system and we’ll have a lot of race riots on our hands.
- Finally, O’Connor declares, in the culminating passage of the majority opinion, “[T]he diffusion of knowledge and opportunity through public institutions of higher education must be accessible to all individuals regardless of race or ethnicity. . . . Effective participation by members of all racial and ethnic groups in the civic life of our Nation is essential if the dream of one Nation, indivisible, is to be realized.”
We already know what such blandly benevolent phrases as “visibly open,” “accessible,” and “effective participation” mean: they mean the systematic imposition of proportional racial equality in elite universities and throughout society — the very thing that Grutter’s constitutional precedent forbids and that Grutter itself excludes. Likewise the perceived need for a “legitimate” officer corps in the armed forces and for race proportionality among the country’s top legislators and judges. These may be desirable, even vitally needed, social objectives. But by the Court’s own reasoning that does not make them grounds to discriminate against Barbara Grutter or any other white person. Yet, in an access of doublethink, that is what the Court is saying can and should be done.
Let us retrace the strange path by which we arrived at this point. The liberal and corporate elites who wanted our top schools and other institutions to be racial mirrors of society had to find an argument, any argument, to give that demand some constitutional coloring. Powell in Bakke provided the coloring, as ludicrous as it was. But now this risible rationale, having been exploited for all it was worth by diversity-hungry universities for the last 25 years despite its constitutionally ambiguous status, has been transformed by Grutter into the supreme law of the land. Under this Orwellian regime, the chimera of “educational benefits” resulting from racial and ethnic diversity is treated as the explicit and legal end, when in fact such benefits are only a pretext to get at the real end, which is guaranteed racial equality of results; and that real end, supported by Grutter and the massively dishonest rhetoric of the entire American establishment, will now be pursued and enforced throughout our whole society.
I say our whole society because, under Grutter, it’s no longer just a matter of education. As the NAACP’s Theodore Shaw told the Chronicle of Higher Education:
I always understood education is different. At the same time, what may have broad impact here is the Court’s recognition that not all race consciousness is unconstitutional, that, in fact, there are compelling state interests in diversity. How far that extends, I’m happy to leave to another day. [Emphasis added.]
The Court, Shaw is letting on, has gone beyond what even he had thought possible. He had only been hoping to get race preferences approved in higher education. But now, with the Court’s finding of “compelling state interests in diversity,” defined by O’Connor as “[e]ffective participation by members of all racial and ethnic groups in the civic life of our Nation” — Shaw sees far wider vistas of racial proportionality schemes opening before him, not just in the schools, but in the national government and the state governments, in businesses and the military, in judgeships and legislatures, and at every discrete level within each institution as well as within each institution as a whole. What he glimpses, in short, is a system of racial socialism, consisting of the raising up of less capable black and Hispanics, and the dragging down of more capable whites and Asians, in order to achieve strict equality of results between the races. He’s in no rush to take advantage, however. As he contentedly digests the marvelous meal the Supreme Court has served up in Grutter, he’s happy to wait for another day to explore these exciting new possibilities.
By enshrining the principle of mandated racial equality of outcomes in the U.S. Constitution, Grutter v. Bollinger announces an ominous epoch in our national life. It is to the lovers of American freedom in our time what the Dred Scott decision was to the opponents of slavery in its time, a grievous wound in our body politic, an institutionalized evil that throws the moral and Constitutional legitimacy of our nation, even our very identity as a people, into doubt. How, henceforth, do we even speak about America, when the very terms we have used to describe her, our reference points for political and intellectual discourse, have been redefined or abolished? How do we go on defending and invoking — let alone recommending to other countries — a political order which in key respects has been changed into the opposite of what it once was and supposedly still is? How do we keep celebrating the “universal principles” that define America, the belief in equality under the law and in the equality of rights of all people under God, when race quotas — the very antithesis of those principles — are now a part of our nation’s supreme law? Indeed, how can we claim that we’re a country under the rule of law at all, when unelected judges unabashedly re-write the Constitution, adding wholly new content to it based on nothing but their desire that it be so, or on the “will of the people” as expressed in the amicus curiae briefs of politically attuned military officers and corporation presidents?
The crisis has been greatly exacerbated by the fact that, in Kafkaesque fashion, so few people even acknowledge that it has occurred. Conservatives, the one group in America that has maintained a principled opposition to race preferences over the last 25 years, have evinced little or no awareness, let alone outrage over the decision. For example, in the months after the decision, a leading conservative figure, Paul Weyrich, did not write a single column about it, instead focussing on the political issues of the moment. And he was far from atypical. When I asked a respected national conservative activist the reasons for the astonishing silence of Weyrich and so many others, she replied matter-of-factly that affirmative action is not among the top ten priorities of the conservative movement. (Another person well-placed in the conservative establishment told me that concern over the war on terror has displaced all other issues.) Of the handful of conservatives who have criticized Grutter, most have done so in the same tone with which they would have criticized any other liberal Court decision over the years, rehashing the oft-told saga of judicial activism of which Grutter is but the latest chapter, but failing to treat Grutter as the earthquake that it is. Commentary actually tilted toward a neutral position on Grutter, publishing a symposium entitled “Has the Supreme Court gone too far?” — as if there could be any question of that! Even worse, half the participants in the Commentary symposium were liberals who thought Grutter was just fine, or nothing to worry about. This astonishing treatment of the issue by the leading neoconservative magazine — a journal that has always made opposition to affirmative action the keystone of its domestic political philosophy — betokened a historical retreat from the very principles that have defined modern conservatism. Even long-time activists against race preferences seemed to have given up the fight. Michael Greve, founder of the Center for Individual Rights which represented Barbara Grutter, said there was no money or energy to support an effort to overturn the decision. “You can continue to litigate those kinds of things,” he said, “but the broader question is settled and everything else is sort of skirmishes.”
Such are the weak, indifferent, or resigned responses of much of the conservative establishment to the Grutter revolution. If establishment conservatives have abandoned the faith, the rest of us cannot. The survival of our nationhood, of our ability to speak as Americans, of our soul and conscience as Americans, depends on the forceful and public rejection of this decision by a significant number of people. In the absence of such protest, Grutter will be taken to represent America, and then the victory of race preferences will be final. There are some among us who already assume that to be the case. Writing in the December 14, 2003 New York Times about the efforts to democratize Iraq, John Burns expressed the hope that Iraqis would be drawn
on a path of entrenched individual and group rights, of a firewall separation between church and state, of independence for the executive, legislative and judicial branches, and above all, of tolerance for minorities. In other words, the core of a civil society as understood in the West. [Emphasis added.]
Thus “entrenched … group rights” are now a part of “the core of a civil society as understood in the West.” Since Grutter, the group-rights revolution doesn’t have to be even argued for any more, at least as far as the liberals are concerned.. It is simply taken for granted as an organizing principle of our society. Unless we fight it, it will truly become an organizing principle of our society.
If Dred Scott “shall stand for law,” wrote the journalist William Cullen Bryant in 1857, then slavery is no longer the “peculiar institution” of fifteen states but “a Federal institution, the common patrimony and shame of all the States… Hereafter, wherever our . . . flag floats, it is the flag of slavery. . . . Are we to accept, without question . . . that hereafter it shall be slaveholders’ instead of the freemen’s Constitution? Never! Never!” As Bryant said of Dred Scott, so must we say of this hideous Grutter ruling and its corrosive lies: that we will never accept it, never give into it — even if generations must pass before it is finally overturned.