published Jun 26th 2016, 9:00 am, by Noah Feldman

(Bloomberg View) —
The Supreme Court’s decision to uphold the University of Texas’s race-conscious admissions process leaves affirmative action in higher education as a surviving remnant of the major social policy innovations that accompanied the civil rights movement.

It’s been almost two decades since the court effectively eliminated most minority set-asides in government contracting. And only three years ago, the justices struck down Section 4 of the Voting Rights Act, which required numerous state jurisdictions to submit to a rigorous Justice Department approval process anytime they wanted to redistrict.

QuickTake Voting Rights

The fundamental constitutional difference between affirmative action and the other policies lies in the official justification that the court has accepted as a compelling government interest. In higher education, the court has endorsed the universities’ argument that diversity is a contemporary educational benefit. In the other instances, the court treats remediation of past wrongs as the justification for racially progressive social policy.

The court has now approved the forward-looking objective of educational diversity. But it has rejected the backward-looking rationale of repairing America’s tragic history of slavery and segregation.

On the face of it, this pattern of judicial reasoning makes little sense. Educational diversity is an idea with a troubling institutional history, and universities have had to reinvent it repeatedly to satisfy the courts. In contrast, the history of racial discrimination is well studied and well understood. The effects are demonstrably ongoing. By rights, the court should have deferred to remediation plans while questioning diversity.

But the pattern can be understood when viewed through the lens of the American virtue of optimism and its reciprocal vice, historical blindness. We want to look forward, not back — no matter the consequences.

QuickTake Affirmative Action

Start with the policy “success” story, affirmative action in higher education. At first this form of race consciousness was justified by the history of discrimination. But in a solo opinion announcing the judgment of the court in the 1978 landmark case of Regents of University of California v. Bakke, Justice Lewis Powell fixated on diversity as an alternative rationale – despite the fact that the other four justices who voted the same way were prepared to rely on remediation of past discrimination as sufficient to justify affirmative action.

Powell took inspiration from a friend-of-the-court brief describing the Harvard College admissions process, which was characterized as intended to produce a diverse class. The brief said that the diversity goal was originally geographic but that “in recent years, Harvard College has expanded the concept of diversity to include students from disadvantaged economic, racial and ethnic groups.”

This was only part of the story. In reality, Harvard dreamt up the geographic-diversity rationale in the 1920s to reduce the number of Jewish students who were getting in on the straight academic admissions system that existed previously.

The racially problematic aspect of diversity isn’t necessarily gone today, either. A current lawsuit against Harvard asserts that today’s version of diversity discriminates against Asian-American applicants.

Although only Powell emphasized the diversity rationale in the Bakke case, his opinion was controlling. That was enough to encourage many institutions to adopt the rationale – which they in turn began to believe. By the time Justice Sandra Day O’Connor referred approvingly to diversity in her 2003 opinion for the court in a University of Michigan affirmative action case, it was becoming orthodoxy.

Yet O’Connor didn’t discard the remediation idea. That was reflected in her observation that 25 years had passed since the Bakke case, and that she expected “that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.” This was an implicit acknowledgment that the use of race to achieve diversity was necessary because of the history of racial discrimination.

By contrast O’Connor rendered minority contracting set-asides almost inevitably unconstitutional in a 1995 opinion by demanding precise evidence that the particular contracting entity had discriminated in the precise area where the set-aside was created. The backward-looking rationale of remediation was rendered toothless.

The 2013 Voting Rights decision ran in parallel. Technically, the issue was whether Congress had the authority to enact the law under Section 5 of the 14th Amendment, which says it can do what’s needed to give all citizens “equal protection of the laws.” The court held that although discrimination had justified the law in 1965 and in subsequent reenactments, the 2006 version was beyond Congressional authority because Congress had not shown sufficient new evidence of systematic racial discrimination in voting.

To be sure, the court’s liberals would probably still be open to remediation theories, and the court’s conservatives don’t care for the diversity rationale. The difference between backward- and forward-looking rationales matters for swing justices like Powell, O’Connor and the author of last week’s affirmative action opinion, Justice Anthony Kennedy.

The swing justices tend to reflect the median voter, either by accident or (in O’Connor’s case) by self-design. So it isn’t surprising that their attitudes reflect the American tendency to ignore the evils of the past and see the future as a chance to give life to an ideal vision.

A diverse student body that looks like America is exactly such a vision of a united nation. It will live on, having become a tenet of broader American social thought. Meanwhile the wrongs of the past will continue to haunt us – but the courts most likely won’t be prepared to recognize them as grounds for affirmative social policy.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story: Noah Feldman at nfeldman7@bloomberg.net To contact the editor responsible for this story: Jonathan Landman at jlandman4@bloomberg.net
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