TCS Daily

So Which Side Won?

By Keith Burgess-Jackson - June 25, 2003 12:00 AM

Suppose my beloved Detroit Tigers meet the hated Atlanta Braves in the World Series. (Alas, it won't happen this year.) The best outcome for me is a four-game sweep by the Tigers. The worst outcome is a four-game sweep by the Braves. But I'll settle for a Detroit victory, even if it takes seven games and even if the games are close. (In other words, I prefer "winning ugly" to losing.) My friend, let us say, is just as devoted to the Braves as I am to the Tigers. Let's assume, moreover, that he hates the Tigers as much as I hate the Braves. His best outcome is therefore my worst outcome. His worst outcome is my best outcome. Our preference structures are mirror images of one another.

Now suppose (per impossibile) that the Braves win the World Series in six games. If I were honest, which of course I am, I would say all of the following: first, I'm disappointed in the outcome (my hopes were dashed and my expectations frustrated); but second, it could have been worse. My Tigers won two games, after all. They were not swept. This thought consoles me. If my friend were honest, which of course he is not, he would say all of the following: first, he's pleased with the outcome (his hopes, and perhaps his expectations, were realized); but second, it could have been better. His Braves lost two games, after all. They did not sweep. This thought gnaws at him. Neither of us got his best outcome and neither got his worst. Objectively speaking, however, my friend did better. He got more of what he wanted than I did of what I wanted.

This is the situation with respect to the recent affirmative-action (i.e., reverse-discrimination) decisions by the United States Supreme Court. Neither side got all that it wanted or hoped for, but neither side's worst fears were realized, either. This does not mean that the sides did equally well, objectively speaking. In the baseball case, the Braves won and my Tigers did not. That is a brute fact that no amount of spinning can erase.

It was humorous (and a little sad) to see the spin doctors discuss the Supreme Court cases on the day the opinions were released. Each side put the best face on the rulings, emphasizing not what it didn't get but what the other side didn't get. Each side rejoiced in not having gotten its worst outcome, but without mentioning that it didn't get its best outcome. This, for better or for worse, is what American politics has come to: spinning. Damage control. Public relations. Keeping one's chin up. Putting the best face on a suboptimal situation. Fear-mongering. Fundraising. Bolstering the morale and stiffening the spines of the troops. It's fundamentally disingenuous, of course, but that doesn't seem to enter anyone's minds, much less their calculations. And it's getting worse. Spinning by one side generates even greater spin on the other. It's enough to make one dizzy.

How should we evaluate the outcome of the cases? That depends on where we set the baseline. If the baseline is the state of affairs decreed by the 1978 Bakke case, then we can ask whether the new rulings allow more or less affirmative action than Bakke (or the same amount). If it allows more, then proponents of affirmative action can legitimately claim victory. If it allows less, then opponents can legitimately claim victory. But that's not the only possible baseline. We might ask instead what each side in the cases sought. If the plaintiff students sought a declaration that the U.S. Constitution forbids the use of race in any way and for any purpose, including promoting racial diversity on campus, then they failed to get what they sought. On the other hand, if the defendant university sought confirmation that its undergraduate affirmative-action program is constitutionally permissible, then it failed to get what it sought.

These are not the only standards by which to evaluate the rulings. I wrote in an earlier column about Bush-hatred (the prime manifestation of which is Bush-bashing). There are people who, for whatever reason or none at all, hate the president and, by extension, all that he stands for. For these people, anything that deprives the Bush administration of its best outcome -- or indeed any desired outcome -- constitutes not just a victory but a glorious one. I think some of the crowing I hear about the rulings is motivated by Bush-hatred. There is something pathetic and troubling about this, for hatred is an unsavory and destructive emotion (except when it comes to baseball, where, mirable dictum, it's healthy). Ironically, it is usually conservatives who are called reactionary. But if one's aim is solely or simply to thwart another, for whatever reason, then one is not acting (much less thinking); one is reacting. Another word for it is spite.

An honest, informed appraisal of the Supreme Court rulings would admit that neither side got all that it wanted. But who got more, objectively speaking? In my judgment, the opponents of affirmative action got more, in which case it is they, not their opponents, who have reason to crow.

Let me explain. The two cases together stand for the proposition that, constitutionally speaking, a college or university may use race only as one of many admissions criteria. And its use is carefully circumscribed. No college or university, henceforth, may use race in such a way that it glosses over relevant differences between or among applicants. This is what Justice O'Connor meant when she wrote of "individualized review of applicants." Anything "automatic," "mechanized," or "predetermined" is now constitutionally forbidden. This goes beyond Bakke, by the way, as Justice Rehnquist made clear in his opinion for the Court. Bakke forbade quotas, which are spots set aside for minorities. The Michigan undergraduate program struck down by the Court this past Monday did not set aside spots and therefore did not run afoul of Bakke. Applicants were allowed to compete against one another for all available spots. It's just that certain applicants were given points for having a quality that others lacked -- namely, being a member of a preferred race. (This is not spin. The University of Michigan admits that in its admission decisions, it prefers some races to others. It has a preferential-admissions system.) In this sense, the ruling objectively favors opponents of affirmative action. None of the spin doctors I heard mentioned this; but then, being spin doctors, they wouldn't.

Another important fact to keep in mind is that there are far more undergraduate students in the United States than there are graduate or professional students. The law-school admissions program upheld by the Court in Grutter v. Bollinger requires individualized attention for far fewer applicants than does the undergraduate admissions program that it struck down in Gratz v. Bollinger. Will universities be able and willing to comply with the new rule? It will clearly be very costly for them to do so, especially at large state universities where tens of thousands of applications are received each year.

Justice Rehnquist, anticipating the problem, noted that cost is no excuse (or justification) for failure to comply. As he put it, "the fact that the implementation of a program capable of providing individualized consideration might present administrative challenges does not render constitutional an otherwise problematic system." Nobody said that compliance with the Constitution, or doing justice, would be cheap or easy. The Court's message is clear: Either give individualized attention to applicants, however costly it may be, or do not use race at all. We will have to see how things shake out. I predict that some -- perhaps many -- universities will stop using race, perhaps after an initial period in which they try to comply with the new, more-demanding requirement.

Those colleges and universities that continue to use race will, in addition to bearing the increased monetary costs, risk being sued for making their admissions procedures too "mechanical." We should not be surprised to see additional affirmative-action cases in the next few years, especially if the composition of the Court changes, as it almost surely will. The writing is on the wall: Use race properly.

There was also an ominous note in Justice O'Connor's majority opinion in Grutter: "We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest [viz., diversity] approved today." The Fourteenth Amendment, she wrote, dictates that "race-conscious admissions policies must be limited in time." This is as clear a statement of constitutional color-blindness as you are likely to get. If I were a proponent of affirmative action or a worker in the civil-rights industry, I would be aghast and dismayed by these words, even if, technically speaking, they are obiter dicta. Don't expect to hear any expressions of dismay, however. Our spinning, disingenuous culture will not allow it. One must never admit to the slightest defeat, failure, disappointment, or doubt.

(Note: On the day the affirmative-action opinions were released by the Supreme Court, Patricia Ireland, the former president of the National Organization for Women and now head of the YWCA, defended the University of Michigan's programs on one of the cable-television networks. This puzzles me, for Barbara Grutter and Jennifer Gratz were two of the plaintiffs in the cases. Both are white women. Had they not been white, they would -- by the university's own admission -- have been admitted to the law school and the university, respectively. Why is Ireland, an avowed feminist, defending programs that exclude (devalue) qualified white women? Why, qua feminist, would she prefer a black man (for example) to a white woman in university admissions? Has feminism become a protection program for nonwhites? Do feminists care any longer [if they ever did] about women as such?)

Keith Burgess-Jackson, J.D., Ph.D., Associate Professor of Philosophy, Department of Philosophy and Humanities, The University of Texas at Arlington. Burgess-Jackson, a member of the State Bars of Michigan and Arizona and a former practicing attorney, wrote his Ph.D. dissertation on constitutional interpretation.

TCS Daily Archives