WASHINGTON--It was serendipitous. On the eve of the Supreme Court's rulings regarding the University of Michigan's two systems of racial preferences, for undergraduate and law school applicants, the Census Bureau reported that Hispanics have supplanted African-Americans as the nation's largest minority.
The rulings effectively say universities can use some sorts of judicially monitored racial preferences forever. But demographic facts say race is rapidly becoming more and more irrational--indeed, unintelligible--as a basis for government actions.
Since the court's 1978 Bakke decision, it has been constitutional law that ``diversity" is a ``compelling" reason for institutions of higher education to give some weight in admissions decisions to members of such races as the institutions decide to prefer. Michigan prefers Hispanics, African-Americans and Native Americans.
Michigan either does not believe that--to take just three examples--Asian-Americans, Arab-Americans and Polish-Americans contribute ``diversity" that is useful to the educational experience of all, or Michigan believes that Asian-Americans, Arab-Americans and Polish-Americans add valuable diversity but can earn admission in sufficient numbers to make preferential treatment unnecessary.
If Michigan's belief is the former, it should explain what it means by valuable diversity. If Michigan believes the latter, it believes that the minorities for which it reserves preferential treatment need to be regarded as handicapped, and hence wards of the state, perhaps forever.
The court ruled 6-3 Monday that the undergraduate admissions policy of awarding 20 points (of the 150 needed for admission; eight points more than is earned by a perfect 1600 SAT score) to any member of a preferred minority, regardless of the member's affluence or other social situation, denied other applicants equal protection of the law. The policy was too obviously a disguised quota system, clearly designed to produce a predetermined ``critical mass" of the preferred minorities.
The court also ruled 5-4 that the law school's more nuanced, less mechanical weighting of race passes constitutional muster because it, unlike the undergraduate point system, provides "a meaningful individualized review of applicants." Those six words of Justice Sandra Day O'Connor are pregnant with burdensome future litigation.
But America's fast-unfolding future will outrun the capacity of litigation to stay pertinent. What are called ``race-conscious" remedies for social problems are going to seem increasingly problematic because race and ethnicity are increasingly understood to be not fixed but extremely fluid, hence dubious, scientific categories.