There’s some crazy sort of death-spiral on display in American politics before our very eyes, and I cannot figure out what it is, or what to do about it. It is enough to note it, and submit the pathology to scrutiny.
As always, a good place to start the diagnostic process is with a decision of the United States Supreme Court. The conflicts that wrack the body politic have a way of finding their way to the high court.
In 2003, the Court wrote: “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.” The language comes from the case of Grutter v. Bollinger, a decision about using race as a factor in ranking law school applicants at a public law school, in this case, the University of Michigan.
Race is a toxic time bomb in American life. In 2020, seventeen years after Grutter, it exploded, suggesting that race matters now more than ever. Why is that? At what point do we say of the past, it has passed? At what point do we say, simply, pick up your bed and walk?
In Grutter, the Court held that a diverse student body was a compelling interest justifying the use of race in deciding whether to admit a student to law school. The Court fully expected that the extraordinary use of race-based scoring would disappear in short order. Instead, things seem to be gathering steam, with mainstream media today taking it as a given that some sort of “racial reckoning” is necessary.
The Grutter decision was decided on Fourteenth Amendment grounds. This Civil War era amendment guarantees to all equal protection of the law. How, the plaintiff wondered in Grutter, was a white person’s right to enjoy the law’s equal protection to be squared with giving persons of color extra consideration in admissions?
Scholars dance on the heads of pins to explain the difference between benign and malign discrimination. Discrimination is bad when it hurts members of a historically marginalized or disadvantaged groups. It is benign, however, when it helps those groups, so long as it does not “unduly” harm those discriminated against. Mr. Grutter felt the sting of being treated differently on account of her race, white; there was no telling her that it was a benign means of accomplishing justice.
What did the Grutter case decide? Simply that race could be weighted in admission to a public university. Why? Because the university had a compelling interest in a diverse student body: there needed to be a “critical mass” of minority students to best serve the goal of educating young lawyers. But here is what the decision also decided:
The decision made clear that it was rejecting quotas as inconsistent with the equal protection clause;
It also explicitly rejected the rationale of “reducing the historic deficit of traditionally disfavored minorities in” professional schools;
It explicitly rejected “remedying societal discrimination because such measures would risk placing unnecessary burdens on innocent third parties.”
Today all these rationale are afloat, with other, more radical proposals, such as reparations, or race-based transfer payments.
So how did we go from a world in which weighting race had a time-limited role in increasing diversity some 17 years ago, a role which the Court expected it sunset into the horizon in a couple of decades, to a full-scale assertion that our society is “systemically racist” and that every effort must be made to remedy societal discrimination?
I’m thinking slavery was abolished more than a century and one-half ago. Jim Crow was dismantled a century ago. We’ve had robust federal civil rights litigation for more than half a century. And yet …
There’s nothing benign about discrimination based on race. Ever.
Isn’t it time to end discriminating on the basis of race?