ast week's Supreme Court decisions in two cases involving admissions at the University of Michigan did not have the usual trumpet-blare characteristics of a judicial landmark.
Like the previous controlling decision in admissions, the 1978 Bakke v. Regents of the University of California, this one left what is permissible in the name of affirmative action in the rather hazy legal realm where it has dwelt for 25 years. As with Bakke, we have another paired set of close decisions, and we have a standard — racial considerations are O.K. as long as they're not done quantitatively — that doesn't seem to parse logically and that is much easier for rich private universities than strapped public ones to obey.
So why were universities, public and private, so happy about the decision? Part of the answer is that back in, say, 1995, it looked as if an irresistibly powerful anti-affirmative-action wave might be sweeping the country. The decision provides what looks like a guarantee that affirmative action in admissions is now safe for another generation. Having it in writing — writing that has the force of law — is always a relief.
Another, less obvious, answer is that the decision, in upholding the Bakke standard, managed to come much closer to aligning the legal justification for affirmative action with the real reasons universities practice it — which has little to do with righting past wrongs or awarding places to applicants with the highest scores. To understand why universities like the decision, one has to delve a bit into university culture — how they see themselves in the world.
Many people have the impression that the federal goverment forced affirmative action on unwilling universities back in the 1960's and 70's. For the most part, that's not so, at least in the realm of admissions. Universities adopted affirmative action not just voluntarily, but enthusiastically and passionately.
At roughly the same time, universities were also adopting what would appear to be a contradictory cause: the principle of admission by open academic competition. First, universities instituted standardized admissions tests as a way of spotting the top potential academic performers, and then they began discounting test scores in order to admit more minority (in particular, black and Latino) students, because members of those groups do less well, on average, on standardized tests than whites.
How could universities embrace two different governing principles, diversity and meritocracy?
From the universities' point of view, the contradiction wasn't as direct as it appears to be. During the rise of affirmative action, their overall academic standards generally increased, for students and faculty alike, so it didn't look as if they were abandoning a previous commitment to merit.
Nor do universities share the public's view of admissions as a rewards system, which must be conducted with absolute fairness to each applicant. Instead, universities consider themselves to be rarefied autonomous institutions, oddly combining fragility and durability. (Remember that universities in recognizable form predate both democracy and capitalism.) Their total commitment to something that seems impractical — the pursuit and dissemination of knowledge — gives them an unlikely authority, independence and allure.
The reason that so many people want to (or should want to) study at great universities is to imbibe the university culture; schools, including elite public ones like the University of Michigan, pick among their applicants to strengthen the culture as much as possible. The idea that they should be forced, in the name of fairness to the individual applicant, to populate themselves via externally dictated quantitative measures deeply violates their self-concept.
So it's important that Justice Sandra Day O'Connor wrote in her opinion that "universities occupy a special niche in our constitutional tradition," and proposed that legal close calls, so to speak, should go to universities because they deserve the honor of being left alone. She justified affirmative action not in terms of righting a past wrong, but of providing operating latitude to a category of institutions.
The University of Michigan's defense in the cases (I should mention that the named defendant in the cases, Lee Bollinger, then president of University of Michigan and now president of Columbia University, will soon be my boss) relied heavily on the idea of "diversity" — that is, the educational benefits inherent in a racially integrated student body — because it had to. Diversity was the sole justification under which the late Justice Lewis F. Powell Jr., in his decision in the Bakke case, would permit the racial preferences that affirmative action entails.
Justice O'Connor accepted the diversity argument and played it back with more force and feeling than Powell had. But she also added an important new justification that much more accurately communicates the appeal of affirmative action to universities: selective universities are partly in the business of training a leadership corps for society, and a society with racial and ethnic tensions can benefit tremendously from having an integrated leadership.
Correlation is not causation, but during the affirmative action era, the United States has created a multiracial authority structure in realm after realm, something few, if any, societies in the world have ever accomplished, and race relations have plainly improved. Universities have for centuries embraced the role of training leaders for the betterment of society, so they're fully comfortable with this argument. It also presents affirmative action as a force correcting present-day problems, which is much firmer justification than as a form of reparation for past problems that no longer exist.
Justice Clarence Thomas, in his populist-flavored dissent, argued against the idea that universities should play a role in selecting society's elites — indeed, against the idea that American society should have designated elites. But in the world we inhabit, elites exist, and universities help create them. (For a perfect example, look at the backgrounds of the Supreme Court justices themselves.) The universities now have the Supreme Court's stated permission to manage the process with a view to helping solve a big problem in American society.
Critics often portray affirmative action as representing the snake of obsessive race-consciousness that sullied a previously colorblind Eden. But before the advent of affirmative action, universities were overwhelmingly white and the handful of minority students had to keep quiet and adapt to the majority culture. There was no real cultural encounter, only silent adjustment by the few minority students.
We now seem to have arrived at a national consensus on affirmative action in which everybody from President Bush on down likes the result of an integrated leadership, but finds the way it was achieved distasteful and therefore doesn't want to know too much about the details. As has often been the case during its history, the Supreme Court has found a way to enshrine the consensus with judicial authority.
Nicholas Lemann, a staff writer for The New Yorker and author of "The Big Test," will become dean of Columbia University's Graduate School of Journalism in September.