The Supreme Court's decisions on two cases this week left both sides in the affirmative action debate claiming victory, but the real losers were the American people. At issue were two programs at the University of Michigan that gave preference in admission to certain minority students. In one case, Grutter v. Bollinger, the Court upheld a program at the University of Michigan law school that gave preference to black, Latino and American Indian applicants; in the other, Gratz v. Bollinger, the Court struck down a similar program at the undergraduate level. But in both cases, the Court paid homage to the notion that "racial diversity" rather than non-discrimination is the true measure of equal opportunity in this society. In doing so, the Court not only reversed several decades of its own precedents but also, for all practical purposes, abandoned the goal of a colorblind society.
Forty years ago this August, the Rev. Martin Luther King Jr., stood at the Lincoln Memorial and gave a speech that galvanized Americans of all races. In his wonderfully stentorian voice, King invoked the image of a day in America's future: "I have a dream that one day this nation will rise up and live out the true meaning of its creed: 'We hold these truths to be self-evident: that all men are created equal,'" he said. "I have a dream that my four children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character."
These words launched a civil rights revolution that was embraced by the American people and led to passage of the Civil Rights Act of 1964, the Voting Rights Act of 1965 and the Fair Housing Act of 1968. As a result, America is today a more just nation.
Imagine what would have happened if instead of calling for equal treatment, however, the Rev. King had said, "I have a dream that my four children will one day live in a nation where they will be entitled to a 'plus factor' based on the color of their skin." As ludicrous as it might sound, that is exactly the principle a majority of the Supreme Court enshrined in their affirmative action decisions this week. No more should we expect the Constitution to be colorblind. No more should we expect the government to extend equal protection of the laws to all persons without regard to skin color. Henceforth the guiding principle will be race as a "plus factor" for certain -- though by no means all -- minorities. Asians and Jews need not apply for a "plus factor," despite the fact that both groups have faced significant -- and in the case of Asians, state-sponsored -- discrimination in the past. Meanwhile, even wealthy blacks and Latinos may be conferred preferential treatment because, without it, a majority of the Supreme Court implies, they cannot succeed.
Make no mistake, the underlying assumption in the Court's argument, especially in Grutter, is that blacks and Latinos cannot be held to the same high standards we expect of whites and Asians. The justices have sent a very clear message to black and Latino students: "We don't expect you to measure up." Melanin, their argument implies, will be treated as a measurable "plus factor" in order to make up for intellectual or academic deficiencies. It is a view that is racist at its core.
Justice Clarence Thomas in an eloquent dissent in the Grutter decision, recalled a speech by the great abolitionist Frederick Douglass in 1865: "What I ask for the Negro," Douglass said, "is not benevolence, not pity, not sympathy, but simply justice. . . . All I ask is, give him a chance to stand on his own legs! Let him alone! . . . (Y)our interference is doing him positive injury." Douglass's words could not be more prophetic of the Supreme Court's mischief this week.