An Original Intention
In her decision in the Harvard race case, released in September, Judge Allison Burroughs observed that “it was always intended that affirmative action programs be limited in duration.” The judge was right. That was the intention, as Justice O’Connor demonstrated long ago.
In her opinion for the Court in 2003 in Grutter v. Bollinger, still the leading race-based admissions case, O’Connor repaired to first principles in quoting a 1984 case, Palmore v. Sidoti, specifically its teaching that “a core principle” of the Fourteenth Amendment was “to do away with all governmentally imposed discrimination based on race.” Accordingly, “racial admissions policies must be limited in time,” she wrote. And because they are “potentially so dangerous,” they should be employed no more broadly than the interest demanded. Enshrining a permanent justification for racial preferences, she continued, would offend this fundamental equal protection principle. (Very good; too bad she voted to uphold race preferences in this case from the Michigan Law School.)
“We [the Court] see no reason to exempt race-conscious admissions programs from the requirement that governmental use of race must have a logical end point. The Law School, too, concedes that all race-conscious programs must have reasonable durational limits.” Continuing to speak for the Court, she said, “We take the law school at its word,” that it would “like nothing better than to find a race-neutral admissions formula and will terminate its race-conscious admissions program as soon as practicable.” (“Terminatin’ We Go”—how about that for a headline?)
Back to O’Connor: It’s been “25 years since [the Bakke case] of 1978, since [we] first approved the use of race to further an interest in student body diversity in the context of higher education. Since then the number of minority applicants with high grades and test scores has indeed increased. We expect that 25 years from now the use of racial preferences will no longer be necessary to further the interest approved today.”
Today it is 2019. We are nine years from 2028—and the end of preferences?
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The admissions director at the time of Grutter—when O’Connor published the words above—said she had to consider the race of applicants because otherwise “a critical mass” of minority students could not be enrolled if admissions decisions were based primarily on undergraduate GPA and LSAT scores.
Think about that “consideration” of race. Discriminatory, no? Justice Thomas saw it that way. As he explained, the policy allowed racial discrimination among the groups included within its definition of Underrepresented Minorities because it awarded all such minorities the same racial preference. The policy didn’t sufficiently allow for the consideration of non-racial distinctions on the part of URM applicants.
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Judge Burroughs was aware of the clock. Or was this a joke? “As time marches on,” she said, “and the effects of entrenched racism and unequal opportunity remain obvious, this goal might be optimistic and may need to change.”
