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Diversity thumbs on the
scales
By John
Hasnas
Any day now, the Supreme Court will
announce its decision on the constitutionality of the University of
Michigan's affirmative-action policies. Advocates for minorities
hope the court will
uphold the program.
It should not. Such a decision will almost certainly damage the
long-term interests of the very groups the proponents of diversity
seek to protect.
Consider the
implications of such a decision. To uphold the university's
admissions policies, the court would have to find that diversity
constitutes a "compelling" state interest; one that is so important
the government may treat citizens differently on the basis of their
race or ethnicity to achieve it. But if assembling a diverse student
body in state universities constitutes a compelling interest, what
does not?
Civil liberties groups are
currently concerned about the Bush administration's treatment of
Muslims and men of Middle Eastern extraction. These groups decry the
special registration provisions that the INS has imposed on
residents from Islamic countries, the Justice Department's practice
of arresting men of Arab descent without probable cause and holding
them for extended periods as material witnesses, and the
administration's designation of Muslims such as Yaser Hamdi and Jose
Padilla as enemy combatants in order to circumvent their
constitutional rights as American citizens. They accuse the federal
government of engaging in a virulent form of ethnic profiling in its
zeal to wage the war on terrorism.
But
if the court rules that the government may classify citizens by race
and ethnicity to assemble diverse student bodies, how could civil
libertarians seriously argue that it may not do so in the interest
of national security?
The odious Jim
Crow legislation that mandated racial segregation in the South was
enacted on the grounds that it was necessary to maintain order and
protect public morals. Surely, the last thing minorities should want
is for this to again serve as a constitutional basis for
discriminatory legislation. But if the court rules that diversity in
the classroom is a compelling interest, how could minority advocates
reasonably argue that the states' interest in preventing public
disturbances and maintaining civic virtue is not?
Liberal advocacy groups regularly cite
the Roosevelt administration's internment of Japanese-Americans as
an archetypical example of invidious governmental discrimination. At
a time when there is a real risk that comparable "national security"
measures may be taken, is it really beneficial to minorities for the
court to make it easier for the government to classify citizens on
the basis of race and ethnicity?
Clearly, the supporters of affirmative
action want to permit the government to make racial and ethnic
distinctions only for benign purposes. But we have been down that
road before. When originally adopted, the 14th Amendment permitted
benign race-conscious governmental action. The same Congress that
passed the Amendment also passed the Freedman's Bureau Act that
provided benefits exclusively to African-Americans.
But once vested with the power to
classify citizens by race, politicians quickly learn how to turn it
to oppressive purposes. Only 28 years after the passage of the 14th
Amendment, the Supreme Court decided Plessy vs. Ferguson, which
permitted the states to segregate the races for the supposedly
benign purpose of preserving "the public peace and good order." It
took another 58 years of living with Jim Crow and the consequences
of the internment of Japanese-Americans for the court to learn that
the only way to prevent politicians from exploiting minorities was
to deny them the power to classify citizens by race and ethnicity
altogether. This was the wisdom embodied in Brown vs. Board of
Education.
Advocates for minorities who
want the court to extend the government's power to treat citizens
differently on the basis of race and ethnicity must believe that
contemporary politicians can be trusted not to abuse this power.
This position is strangely at odds with their denunciation of the
current administration's policies and judicial nominees as hostile
to civil rights. Disregarding the wisdom of Brown, these advocates
would re-embark on the path that led to Plessy, once again
confirming that those who cannot remember the past are condemned to
repeat it. If they are fortunate, the court will save them from the
consequences of their historical amnesia by declaring the
university's admissions programs to be unconstitutional.
John
Hasnas is an associate professor of Law at George Mason University
and a research fellow at the Cato Institute.
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