Reading strongly held views about political morality into the U.S. Constitution is a powerful temptation on both sides of the political divide. That’s one lesson of the heated debate between Supreme Court justices in this week’s split decision to uphold a Michigan ban on affirmative action at state universities.
Justice Sonia Sotomayor argued that it’s unconstitutional for a state to make its universities admit students without regard to race. Justices Antonin Scalia and Clarence Thomas argued that it’s actually race-sensitive admissions policies that are unconstitutional.
The better approach is the one Justice John Paul Stevens took in 1978 in University of California Regents v. Bakke. When there’s no need to decide what the Constitution says about a policy, the justices shouldn’t take up the question. And there’s already a statute that settles whether universities should be able to take race into account in admissions: the Civil Rights Act of 1964.
That law holds that “no person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”
These words are not tricky to interpret. They mean that a university receiving federal funds can’t discriminate against applicants based on their race. They can’t discriminate against blacks or whites or Asians or any other racial group. Which means, as a necessary implication, that they can’t discriminate in favor of any racial group either.
Justice Lewis Powell wrote the controlling opinion in Bakke, and he came up with an ingenious way of ignoring the Civil Rights Act. That law, he reasoned, was an attempt to enforce the clause of the 14th Amendment that requires states to offer equal protection of the law to everyone. If the court decided that racial preferences for disadvantaged minorities are compatible with equal protection, then, they would have to be compatible with the statute, too.