Revision — From the September 2017 issue

A Matter of Degrees

America’s long struggle with affirmative action

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According to the prophecy, we are in the last days when race will matter in the molding of American citizens. This particular prophecy was made in 2003 by Sandra Day O’Connor in the majority opinion for Grutter v. Bollinger. Upholding the University of Michigan Law School’s right to use a race-conscious admissions process, she nonetheless declared that such measures would soon be obsolete: “We expect that 25 years from now, the use of racial preferences will no longer be necessary.” By biblical standards, it is a mild, carefully hedged prophecy. But it has had biblical effects, influencing college and graduate-school admissions policies across the nation, touching the destinies of millions, and altering the American map of hope and bitterness.

For some on that map, O’Connor’s decision was itself a source of pain and a spur to action. To see why, we need to remember that on the same day her opinion was handed down — June 23 — the Supreme Court delivered a very different ruling in a similar case, Gratz v. Bollinger. Jennifer Gratz had targeted the University of Michigan’s undergraduate admissions plan. Writing for the majority, William Rehnquist argued that in her case, the university had indeed violated the Equal Protection Clause.

Gratz had applied to Michigan in 1995. By the time the Court issued its ruling, she had long since earned a mathematics degree from another school, and was working in computer software. But the gut punch of the Grutter decision affected her so deeply that she left all that behind for a new career as an anti–affirmative action warrior. In time, Gratz founded and led the cannily named Michigan Civil Rights Initiative — a missile aimed directly at O’Connor’s prophecy.

In 2006, M.C.R.I. collected enough signatures to put a constitutional amendment to kill affirmative action on the state ballot. Despite accusations of fraud — black voters were allegedly told that the petition supported affirmative action — the initiative went forward, and passed with 58 percent of the vote. Fraud or no fraud, American politics runs on spin, and the pro–affirmative action forces were out-spun in this instance.

They did their best to overturn the vote, taking the case all the way to the Supreme Court. There too they were rebuffed. In his opinion, Anthony Kennedy performed the delicate dance that Supreme Court majorities have been doing around the American psyche for the past six decades. Of course, he conceded, there might be ugly voices in the public debate that would “use racial division and discord to their own political advantage.” But the voters had spoken, and they had

deemed a preference system to be unwise, on account of what voters may deem its latent potential to become itself a source of the very resentments and hostilities based on race that this Nation seeks to put behind it.

This would be all well and good if the affirmative action debate had ever been carried on at the level of rational thought — preserved, as it were, in a jelly of emotional repose. Put another way, it would all be well and good if the debate were occurring in the imaginary zone that the philosopher John Rawls called the “original position,” where a sort of blissful amnesia would relieve people of their political identities, envies, antagonisms, and all the other social tensions that keep them at odds. Alas, in a world where the high-achieving Jennifer Gratz’s humiliation is an impetus to constitutional change, and where the deliberate short-circuiting of rationality is the job of campaign strategists, political positions are the reality and the original position is a dream, albeit a necessary one.

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