	Bob Hostetler > Writing

Diversity Trumps Justice

by Bob Hostetler

They're called justices, the nine men and women who bear the great and terrible responsibility of serving their country on the Supreme Court of the United States. But a recent decision of that court betrays the true priority among the majority, and it's not justice.

This summer the court ruled that American colleges may legitimately-constitutionally, or so the court seems to believe-discriminate in favor of minority students in admission practices and standards. Though they hedged their bets in their ruling, disallowing the use of a point system in favoring minority students, they nonetheless upheld the use of race as a deciding factor in who gains admittance to what schools.

Once upon a time (1868, actually), the citizens of this nation adopted the fourteenth amendment to the Constitution of the United States (which Supreme Court justices cite in their oath as the source of their authority and responsibility). That amendment states (in part), "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor deny to any person within its jurisdiction the equal protection of laws" (italics added).

Equal protection. Sounds pretty darn fair, doesn't it? Unless you're the University of Michigan and you want to prefer some students (based on their race) to others (based on their race). Back in 1868, that was the very situation the amendment was supposed to prohibit, though at that time, few people could foresee a day when diversity would trump justice. But that's the position recently taken by the highest court in the land.

Justice Sandra Day O'Connor, in the part of the decision that approved unequal, race-based protection because it was disguised better than in the other part of the case, argued that the Constitution "does not prohibit the [University of Michigan's] law school's narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body" (italics added).

In other words, O'Connor has decided that the equal protection clause is a less compelling interest than "obtaining the educational benefits that flow from a diverse student body." Diversity is a compelling interest. Not justice, diversity. And, if one continues reading Justice O'Connor's decision, one learns that she's even more explicit than that, stating, "We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today." That is, injustice-as defined by the fourteenth amendment to the Constitution-is appropriate (in the short term, at least) if it achieves diversity.

Do you see what's happened? In one fell swoop, the highest court in the land has made its choice, and it has chosen (by a 5-4 vote) to clearly and consciously prefer diversity to justice. This is thoroughly lamentable, but nonetheless predictable in a culture-and a court system-that has rejected nearly all belief in objective "Truth" (except the absolute truth that there is no absolute truth). Dispensing justice relies on the belief that there are such things as right and wrong; diversity is far more ethereal and elusive. In a society that has moved the moral markers so often we have trouble with concepts as basic as justice, it is no wonder that diversity is the highest goal to which our highest court can aspire.

For that reason (among many, many others), the Justices' decision will guarantee only injustice, for "justice" is defined constitutionally (as "equal protection of laws," to cite one example) while "diversity" is not. So who decides what exactly constitutes diversity? (Witness, for example, that Asians are not granted preferential treatment under the University of Michigan admissions policy; are they not "diverse" enough…or are there already "enough" of "them," and how do you define "enough?"). Which brings up the question of who can say when such diversity is achieved? And what if, twenty-five years from now, the "diversity" that's been achieved isn't the "diversity" Justice O'Connor had in mind? What happens then? Will we need a new set of injustices to further a freshly-invented "compelling interest?"

I know justice is supposed to be blind to race, religion, status- giving equal protection to all, according to the fourteenth amendment. But it still grieves me to see the majority of Supreme Court "justices" poking her in the eye.

This article appeared in the August 1, 2003 edition of the Hamilton Journal-News.

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