Earlier this month, opening briefs were filed in Grutter v. Bollinger and Gratz v. Bollinger, two cases to be heard later this Spring by the Supreme Court challenging the constitutionality of the racial preferences utilized in the admissions programs of the University of Michigan law school and undergraduate college, respectively, in order to achieve a "critical mass" of students from particular racial and ethnic minority groups.

The factual record developed by Michigan in the trial courts suggests that the sought-after "diversity" would not be achieved without explicit resort to race. As a result, the Supreme Court is going to have to address whether "diversity" is itself a compelling enough interest to allow the government to discriminate among citizens on the basis of their race and ethnic background.

The facts of the case involving the Law School’s racial preference program place the issue in start relief. As Judge Boggs noted in his dissenting opinion in the Court of Appeals, "It is clear from the Law School’s statistics that under-represented minority students are nearly automatically admitted in zones where white or Asian students with the same credentials are nearly automatically rejected." What that means, necessarily, is that a substantial number of better-qualified applicants, white and non-preferred minorities alike, are denied admission simply because of their race or ethnic background in order to make way for less-qualified (indeed, unqualified, as Michigan itself conceded in its briefs in opposition to the petition for certiorari) applicants. When one considers how pervasive the use of race in higher education admissions has become, it becomes clear that a student like Barbara Grutter, who is not a member of one of the state’s preferred minority groups, is likely to find the door of elite higher education closed to her, not just in Michigan but throughout the land, based solely on the color of her skin.

Michigan finds refuge for its racially discriminatory admissions policies in Justice Powell’s solo opinion in Regents of the University of California v. Bakke, in which Justice Powell sanctioned the use of race as a plus factor in a properly devised admissions program. Justice Powell’s statement—that "the State has a substantial interest that legitimately may be served by a properly devised admissions program involving the competitive consideration of race and ethnic origin"—was phrased in the language of intermediate or even rational basis scrutiny, however, not the strict scrutiny that the Supreme Court has now repeated held applies even to so-called "benign" racial discrimination.

Moreover, Michigan seems to have assumed that the four dissenters in Bakke would have approved treating "diversity" in education as a compelling governmental interest since they were all willing to uphold the University of California’s racial quota system under the lower level of scrutiny they thought applicable to "benign" racial discrimination, and that, as a result, Bakke should be read as actually "holding" that diversity is a compelling governmental interest. Such hypothetical speculations form no part of the Court’s holding, of course, particularly where, as in Bakke, there are good reasons for questioning Michigan’s assumption about how the four dissenters would have treated "diversity" under strict scrutiny.

The dissenters’ embrace of Justice Powell’s apparent approval of the use of race as a "plus" factor came with an important caveat. They "agree[d] with Mr. Justice Powell that a plan like the ’Harvard’ plan is constitutional under our approach, at least so long as the use of race to achieve an integrated student body is necessitated by the lingering effects of past discrimination." Absent past discrimination—and Michigan has not provided any evidence that the statistical disparity in its applicant pool is the result of past discrimination—the use of race would not serve such a remedial purpose but would rather amount to a raw, perpetual racial balancing.

Moreover, treating "diversity" as a compelling interest might allow, perhaps even require, states to ban historically black colleges, an outcome that, one might just as easily assume, the four Bakke dissenters would have soundly rejected. The lack of racial diversity at the more than one hundred historically black colleges and professional schools throughout the country—major names in higher education such as Grambling State University in Louisiana, Morehouse College in Atlanta, Georgia, and even Lincoln University in Pennsylvania and Howard University in Washington, D.C., one of the Bakke dissenter’s own alma maters, would be problematic. Indeed, as with all of these great institutions, Morehouse College, which numbers among its alumni Dr. Martin Luther King, Jr., and which rightfully boast that it "enjoys an international reputation for producing leaders who have influenced national and world history," should be offended—we all should be offended—by Michigan’s patronizing statement that "preparing students for work and citizenship in our diverse society is difficult, if not impossible, in racially homogenous classrooms."

On the eve of the adoption of the Fourteenth Amendment and its codification of the equality principle articulated eleven score and seven years ago in the Declaration of Independence, former slave Frederick Douglass recognized that such "benign" racism was as much a barrier to equality as the more common kinds of discrimination imposed under Jim Crow. Nearly a century and a half later, we still seem to struggle with that self-evident concept. Let us hope that the Justices can see past Michigan’s benignly-colored claims to the promised land of a truly color-blind Constitution.

John C. Eastman is a professor of constitutional law at Chapman University School of Law and director of the Claremont Institute Center for Constitutional Jurisprudence in California.