THE SUPREME COURT'S decision this week to consider the constitutionality of race-conscious admissions to the University of Michigan's undergraduate program and law school was not a surprise. The high court's previous opinion on educational affirmative action -- the famous 1978 case of University of California Regents v. Bakke -- was not a model of clarity. And the lower courts have split in recent years over what Bakke means and whether it even remains law in light of the Supreme Court's more skeptical recent treatment of other affirmative action programs. In 1996 the University of Texas saw its program struck down, while Michigan's was upheld this year. Clarification as to what use of race, if any, is still permissible in university admissions is necessary. The stakes are high -- and not merely for state schools. For while the Constitution's guarantee of equal protection applies only to public institutions, federal law forbids discrimination by any institution that takes federal money, which is to say almost all private colleges and universities. So in deciding the fate of affirmative action at Michigan, the court will be deciding whether colleges around the country can give any sort of preference to minority applicants.
In our view, the court would be wise to leave Michigan's program alone. Nobody ought to be comfortable with the state's treating people differently by race. But the question for the court is not whether preference programs are a good idea or whether their social costs outweigh their benefits. It is whether they so violate the basic ground rules of American democracy that they should be removed from the policymaking table altogether. It is certainly reasonable to demand that preference programs be carefully designed. But it would be wrong for the courts to decree that equal protection -- a doctrine meant to prevent the subjugation of one race by another -- demands race-blindness from all schools. Diversity may be an interest whose value is difficult to quantify. But in a multicultural democratic society, where universities often serve as training grounds for citizenship, diversity has educational benefits. For the courts to dismiss the desire to expose students to others unlike themselves as an inadequate justification for a race-conscious policy would be a heavy-handed imposition by judges.
In reality, diversity in higher education is so widely demanded that the political system will find ways of making it happen -- using whatever surrogates for race and ethnicity it can -- even if the legal system forbids the most obvious means of achieving it. When the courts blocked affirmative action in Texas, the Legislature responded by mandating that the university system admit any student who graduated in the top 10 percent of his or her high school class. This relatively crude instrument is nominally race-blind and well inoculated against legal challenge. But it actually involves a greater diminution of standards than a conventional affirmative action plan, because it requires admitting both whites and minorities who would be rejected but for the entitlement. The courts should defer and let the debate over the merits of these programs, and when they should come to a close, play out in the political arena.