The (weak) argument for dishonesty in race matters
I don’t disagree with the points made by Sherry, Trevor and Justices Ginsburg and Souter, but I do want to suggest (in an almost-but-not-quite-Swiftian vein) that sometimes there is something to be said for dishonesty. I think it’s no accident that only Justices O’Connor and Breyer voted in the majority in both Grutter and Gratz. The liberals on these issues tend to think that while honesty is the best policy, dishonesty is okay too: so it’s okay, according to the liberals, for a state institution to pursue diversity, integration, etc., through a variety of means. Conversely, the conservatives disdain these programs whether or not they’re open about the use of race. It’s only the middle that really think that some covert uses of race are better than overt uses of race. What can be said for that?
The best explanation comes from Justice O’Connor herself, in Shaw v. Reno:
we believe that reapportionment is one area in which appearances do matter. A reapportionment plan that includes in one district individuals who belong to the same race, but who are otherwise widely separated by geographical and political boundaries, and who may have little in common with one another but the color of their skin, bears an uncomfortable resemblance to political apartheid. It reinforces the perception that members of the same racial group - regardless of their age, education, economic status, or the community in which they live - think alike, share the same political interests, and will prefer the same candidates at the polls. We have rejected such perceptions elsewhere as impermissible racial stereotypes
Perhaps one could say the same thing about certain forms of affirmative action in higher education. Where a mechanism is “too honest”—expressly different numerical cutoffs for standardized tests or GPAs depending on race, for example—uncomfortable messages will be communicated. But even if one buys this argument, it’s hard to see how it works in the context of public elementary and secondary schools. If the Court strikes down the Seattle and Louisville plans, the most patent appearance will be the appearance of segregated schools, which will, to paraphrase Justice O’Connor, bear an uncomfortable resemblance to American apartheid of the Jim Crow era. As relatively conservative circuit court judges like Alex Kozinski and Michael Boudin recognized, the Seattle and Louisville cases should be stronger candidates for upholding the use of race than was Grutter; yet we may be headed for the opposite result.
The best explanation comes from Justice O’Connor herself, in Shaw v. Reno:
we believe that reapportionment is one area in which appearances do matter. A reapportionment plan that includes in one district individuals who belong to the same race, but who are otherwise widely separated by geographical and political boundaries, and who may have little in common with one another but the color of their skin, bears an uncomfortable resemblance to political apartheid. It reinforces the perception that members of the same racial group - regardless of their age, education, economic status, or the community in which they live - think alike, share the same political interests, and will prefer the same candidates at the polls. We have rejected such perceptions elsewhere as impermissible racial stereotypes
Perhaps one could say the same thing about certain forms of affirmative action in higher education. Where a mechanism is “too honest”—expressly different numerical cutoffs for standardized tests or GPAs depending on race, for example—uncomfortable messages will be communicated. But even if one buys this argument, it’s hard to see how it works in the context of public elementary and secondary schools. If the Court strikes down the Seattle and Louisville plans, the most patent appearance will be the appearance of segregated schools, which will, to paraphrase Justice O’Connor, bear an uncomfortable resemblance to American apartheid of the Jim Crow era. As relatively conservative circuit court judges like Alex Kozinski and Michael Boudin recognized, the Seattle and Louisville cases should be stronger candidates for upholding the use of race than was Grutter; yet we may be headed for the opposite result.