So here's the thing.
I keep having the feeling that I ought to say something pithy and interesting about the decisions announced by the Supreme Court today in the University of Michigan cases and the Library filters cases.
In Split Decision, Court Backs Affirmative Action (washingtonpost.com): The Supreme Court issued a qualified but resounding endorsement of affirmative action in higher education today, in a pair of historic decisions that, taken together, ratified diversity as a rationale for race-conscious admissions and laid out constitutionally acceptable means for achieving it. A slender five-justice majority upheld the University of Michigan law school's approach to enrolling a "critical mass" of African Americans, Latinos and Native Americans, under which the school considers each applicant student individually and sets no explicit quota. At the same time, a six-justice majority rejected, as too mechanistic, Michigan's undergraduate affirmative action program, under which members of these "underrepresented" groups get an automatic 20-point bonus on the 150-point scale used to rank applicants. The net effect of the two rulings was to permit selective public and private universities to continue using race as a "plus-factor" in evaluating potential students, provided that they take sufficient care to evaluate individually each applicant's ability to contribute to a diverse student body. Five justices also endorsed the view that diversity-based affirmative action should not be a permanent feature of American life, urging universities to start preparing for the day, 25 years hence, when it will no longer be necessary.
That last sentence does, in fact, overstate what the opinion, written by O'Connor, actually said. Despite the fact that it starts out, "We expect ...." it's clear that her statement is a hope for the future, nothing more.
Supreme Court Upholds Internet Filters (Washington Post; Monday, June 23, 2003): The Supreme Court upheld today a federal law that seeks to prevent Internet users at public libraries from gaining access to pornography, a decision that could affect the online choices available to millions of Americans who use the World Wide Web at libraries. By a vote of 6 to 3, the court said the Children's Internet Protection Act (CIPA), which requires libraries that receive federal Internet aid to use anti-pornography filtering software, does not violate the constitutional guarantee of free speech.
It is a very mild surprise that rabid free-speech defenders Kennedy and Souter came down on the side of internet filters. (Emphasis on the very mild.) The fact is, the Court has usually deferred to Congress' ability to decide how and where to spend its money. (Well, very technically, our money, but you know what I mean.) After all, the law does not simply mandate that libraries use the filters -- that would be flatly unconstitutional. The law mandates that, if a library system is to continue to receive federal technology funds, it place internet filters on its public computers. Some systems have in fact declined to accept federal technology funds since the law was passed -- although, given the collapse of state and municipal funding of public services, one wonders how many of them are maintaining that position. Nonetheless, not remotely an unexpected or particularly exceptional position for the Court to take; after all, Congress was (finally) responding to the fact that the Court had told them twice before what they needed to do to create a sustainable law.
Regarding the admissions decisions, it's not surprising that the more narrowly tailored law school program would survive, while the undergraduate program that gave an explicit, numbered value to race would not. The Court has, since Bakke, disfavored programs that have explicit numbers regarding race attached to them. The difficulty with the current result, as noted by this Newsweek article, is that it clarifies nothing and ensures a continued parade of these cases to the Court. The opinion could generally be summarized as: We don't think that race doesn't matter, but if you give it any sort of quantity, any sort of explicit numerical value, the program isn't going to survive. The dissent is ... interesting. Kennedy's main objection seems to be that the judicial review was perfunctory and insufficient, according to the test established in Bakke, and that the law school did not provide sufficient guidelines to its application evaluators (PDF opinion at the Associated Press site). Of course it didn't provide guidelines; every program that attempts to provide some sort of guideline gets shot down by the court because once you have a guideline, it makes the program evaluation look quantifiable and hence a quota. I must admit, I'm baffled as to where Kennedy derived the consequences of this judgement from; I'm not at all sure why "deferring to the law schools' choice of minority admissions programs" should necessarily result in "the courts [losing] the talents and resourcs of the faculties and administrators in devising new and fairer ways to ensure individual consideration." Frankly, speaking as one who once worked admissions, "constant and rigorous judicial review" doesn't force the faculties to "undertake their responsibilities as state employees in this most sensitive of areas with utmost fidelity to the mandate of the Constitution"; it simply makes for an entirely neurotic admissions department. Rehnquist kvetches in his dissent (PDF at AP) that the UM law school program is nothing more than "a naked effort to achieve racial balancing." Well, yes, I suppose it is. The statements as advanced by the law school are rather silly; what on earth is a "critical mass", anyway? It's also rather clear that the law school is balancing its proportion of applicants and proportion of acceptances. Rehnquist's final objection is that the law school doesn't state when it plans to end such programs. Apparently, the law school is required to magically discern when our society will truly become race unconscious.
Here's the thing: Affirmative action sucks. Sucks big time. Sucks for everyone, whether you're included or excluded by those programs. If you're included, sometimes, you'll never know if you could have made it on your own -- granted, you seldom know that you're included for those reasons. However, everyone else always seems to think that you were. If you're excluded, you feel cheated -- granted, you seldom know that you were excluded for those reasons, but people frequently seem to think that they were. So, yes, as a tool, affirmative action has its problems.
The objections to affirmative action programs frequently read as though people are channeling Candide. We should never acknowledge race, we live in a color blind society, we should only judge people on merit alone and, you know, that thing that Martin Luther King said about "the content of their character." In other words, this is now the best of all possible worlds, and we should conduct ourselves accordingly. And that's a teensy bit disingenuous, to put it mildly. We're 140 years out of slavery, 120 years past the spectacularly nasty Chinese Exclusion Act, only 60 years past the Japanese American internment camps, and only 40 years past the first federal voting rights acts. Yes, those first three things are in our past, but it's not as though we miraculously became a kindler gentler society in that short a time. Essentially, we've had some sorts of official discrimination for more than half our history. In many ways, race still matters. It would be nice if it didn't; it would be absolutely lovely. It would not, however, be the present-day United States.
The truly annoying thing about both the opinion and the dissent is the muleheaded refusal to admit that race matters. Race may be purely an artificial construct; so is the rest of society. Nonetheless, in and of itself, it still matters in this country.
In any event, no, today's opinions were not remotely unexpected. Frankly, I'm more looking towards Thursday's opinions, when the Texas sodomy law and Georgia voting rights cases will probably be announced. (Although, to be honest, it's the second-level case in Georgia that I'm particularly fascinated by. You just don't have a governor suing the state's attorney general all that often.) The Court has only this week left in its calendar before it goes on recess until next October.Posted by iain at June 23, 2003 07:00 PM