Department SpotlightAs published in the June 27, 2003, issue of The Seattle Times, and the June 25, 2003, issue of The Spokesman-Review.
In Wake of Court Rulings, Professor Asks 'Is The Constitution Color-Blind?'
By Julia K. Stronks J.D. Ph.D.
On Monday, June 23rd, the U.S. Supreme Court handed down two decisions addressing the issue of reverse discrimination in state universities. White women had challenged the affirmative action policies of the undergraduate program and the Law School program at the University of Michigan. The Supreme Court ruled that one affirmative action policy was Constitutional but the other was not.
I've been teaching law-related courses for 15 years and whenever my students study affirmative action, the first issue we have to address is whether the Constitution is, or ought to be, color-blind. If the Constitution is color-blind, argue many, then the Equal Protection clause of the 14th Amendment ought to protect white people from discrimination as well as all others. Some students' angry response to the color-blind argument will then invoke historical discrimination against African Americans. Then, the class often dissolves into an argument about whether affirmative action hurts African Americans, or whether other groups such as Asians or gays have historically suffered discrimination. Rarely are any students persuaded that they ought to change their mind on the issue.
The purpose of this essay is not to change any one's mind about this issue, but it is designed to give some clarity to citizens who may be confused about whether the Constitution is color-blind.
The Equal Protection Clause suggests that government may not discriminate against people on the basis of race. However, for over 150 years the jurisprudence of both conservative and liberal judges has determined that no provision of the Bill of Rights or the 14th Amendment grants an absolute right. Rather, government may limit many of our Constitutional rights as long as the law or the government action involved passes an appropriate test. Going back as far as the early decades of the 20th century, the appropriate test for limiting rights articulated in the Bill of Rights has been referred to as a Strict Scrutiny test. This means that discrimination on the basis of race against whites or blacks or any others has always been allowable as long as the government can persuade the Court that the two elements of the Strict Scrutiny test have been met: first, is there a compelling reason to allow the discrimination--is there a compelling government interest? Second, is the government action or law narrowly tailored to achieve the compelling interest--or, has the government used the least restrictive alternative to achieve its interest?
The reason that the University of Michigan cases -- Gratz v. Bollinger and Grutter v. Bollinger -- are so important is that there has been legal debate about whether achieving diversity in a student body is a compelling interest on the part of government--does it meet the first part of the test? The 1978 Bakke case seemed to say "yes, a diverse student enrollment is compelling." However, the Bakke decision was announced by Justice Powell, but no other justices signed on to it in full. The case produced six different opinions and the jurisprudence about compelling interest was unclear. So, when Justice O'Connor wrote Monday in Grutter that diversity is a compelling interest, one aspect of Constitutional law became certain. Justice O'Connor said that the compelling interest issue was the reason that the Court agreed to hear these cases. The justices wanted to clear up confusion.
The more complicated part of the test, the narrowly tailored requirement, is today clearer but still not absolutely clear. The justices have always agreed that quotas are illegal because they are not narrowly tailored to any compelling interest, and for most of the justices the affirmative action plan used by the University of Michigan undergraduate program was too much like a quota to pass muster. However, Justice O'Connor said that when a school uses a system that evaluates each applicant separately and considers how that person would contribute to the overall diversity of the school, then the policy could be sufficiently tailored to meet the second part of the test. For now, race may be used as one element among many considered for college admissions. However, O'Connor also said that while diversity may always be a compelling interest, using a policy that takes race into account should disappear in the next 25 years. The Court has given a clear mandate for government agencies of all types to seek race-neutral ways to achieve diversity.
If we are to move forward in this debate about affirmative action, we will do so only if we pay close attention to the Court's mandate. In 1978 we debated the legality of affirmative action with Bakke; today, twenty-five years later, we debate it with Grutter and Gratz. Whatever our individual positions on affirmative action, let's be sure that 25 years from now we have paid so much attention to the educational preparation of all young children that the affirmative action debate is moot. Let's be sure that in 25 years when we talk about a diverse student body, a diverse work-force, a diverse military, we can be race-neutral because we have already ensured that people of all races have equal access to both the public and private goods that prepare us to be productive, engaged citizens.
Julia Stronks is professor of political studies at Whitworth University where she teaches courses on American government and the role of law in society. Author of Law, Religion and Public Policy (2002, Lexington Books) and co-author of Christian Teachers in Public Schools (1999, BakerBooks), Professor Stronks frequently writes and lectures about her research on the relationship between faith and public policy. She holds a law degree from the University of Iowa and a Ph.D in political science from the University of Maryland.