Nor is political expression, the core of the First Amendment’s guarantee of freedom of speech, free from governmental suppression. Although this suppression is not explicitly ideological, it indicates the devaluing of political speech by state and federal legislatures and a worrisome attitude about such speech on the part of the Supreme Court. Repression here takes the form of laws regulating when such speech may occur in political campaigns, and how money may be contributed to candidates to enable them to reach mass audiences with their messages. The incentives for legislatures to enact such laws are obvious. Despite sanctimonious rhetoric about the need to purge politics of the corrupting influence of money and to avoid even the suspicion of corruption, it is clear that these laws are intended to, and do, have the effect of protecting incumbents from effective challenges at the polls. It is less clear, however, why the Supreme Court upholds such laws against First Amendment attacks when the reforms results are both to diminish political speech and to shift power among political speakers.
Buckley v. Valeo in 197616 upheld portions of the Federal Election Campaign Act, one of several misbegotten post-Watergate gestures toward purity, which severely limited individual contributions to political campaigns on the theory that large contributions may lead to the corruption of politics or may create a public impression of corruption. The public-impression rationale, though without any empirical support, was used to justify contribution limits far below any that could realistically be thought to raise any possibility of actual corruption. Had limits so severe been in effect at the time, they would have made it impossible for Eugene McCarthy to accept the large contributions necessary for his primary challenge that led Lyndon Johnson not to run for reelection in 1968.
Any hope that Buckley was an aberration that the fading of overwrought Watergate passions and the appointment of new justices would remedy was disappointed in 2000 by Nixon v. Shrink Missouri Government PAC.17 A Missouri law set limits on campaign contributions for state elections that were considerably more severe than the limits set by federal law. The Supreme Court once more held that corruption or the possible appearance of corruption were adequate grounds to regulate contributions. Justice Stevens concurred, insisting on “one simple point. Money is property; it is not speech.” That point, it may be suggested, was too simple. A soapbox is property, not speech, but the speech of an orator in Hyde Park would be much less effective without it. Television equipment, paid for by contributions, is property, but speech could not reach a mass electorate without it. A contributor provides the electronic soapbox for a candidate who shares the contributors views on issues. The contribution makes it possible for both the candidate and the contributor to speak. The lower the contributions allowed, the more time and energy must be devoted to fundraising, and the less may be devoted to the development and delivery of the message.
Justice Breyer’s concurrence, while conceding that money enables speech, argued that limiting the size of the largest contributions serves “to democratize the influence that money itself may bring to bear upon the electoral process.” If the democratization rationale is sufficient to limit political participation through contributions, there seems no reason, in principle, why that argument would not justify limiting political expression by those who wield “disproportionate” influence by other means—journalists, union members and students who can canvass door to door, celebrities, and, of course, incumbent politicians. Regulating campaign contributions alone censors the expression of views by one segment of the public and shifts political influence from that group to others not similarly restrained.
The Court has turned the First Amendment inside out, freeing uninhibited pornography and obscenity from democratic control while allowing the suppression of some forms of political expression. It is perhaps not too speculative to think that laws enlarging penalties for crimes that appear to be “hate crimes” may be the forerunner of a movement of speech codes from American campuses into the public arena, and perhaps the more widespread use of compulsory “sensitivity training.” Given the overwhelming likelihood that the Left would have more success in suppressing the expression of ideas and attitudes than would the rest of us in suppressing obscenity, it might, under present circumstances, be the part of wisdom not to endorse the concept of censorship.
THE CONTINUING DILEMMA OF RACE
The American situation with respect to race remains much as it was seven years ago. Positive signs in some areas are paired with negative signs in others. The major setback in race relations is the elites’ continuing insistence upon racial preferences for some—which are, of course, simultaneously racial penalties for others. The results are entirely predictable. In the United States, as in all other countries where preferences of this sort have been awarded, the result is increased tribalism and social divisiveness.
The preeminent victory for the Olympians, and disaster for public policy, was, of course, the Supreme Court’s decision in Grutter v. Bollinger,18 backed by an opinion of transparent sophistry. The result was to be expected, however, since the Court is in thrall to Olympianism but cannot reason persuasively on this topic because all of the legal and prudential rationalizations for racial preferences were exploded some time ago.
Barbara Grutter, a white resident of Michigan, was denied admission to the university’s law school despite having a grade point average (GPA) and a score on the law school aptitude test (LSAT) that would have guaranteed her admission had she been black, Hispanic, or Native American. She sued the law school and various university functionaries, alleging violation of the Equal Protection Clause of the Fourteenth Amendment and the 1964 Civil Rights Act. The law school responded by claiming that “diversity” is essential to its educational function as a first-class law school. Grutter lost, five to four, and the reasons given by the Court majority reveal the dishonesty of the “diversity” rationale that is now the favorite locution of intellectual Olympians in justifying antiwhite discrimination.
The established law was, but apparently is no more, that a racial classification could be justified only by a “compelling governmental interest,” must be narrowly tailored to meet that interest, and limited in duration, and that courts must apply strict scrutiny to ensure that those conditions are met. None of these conditions was met in the program of racial discrimination the Court upheld. Justice O’Connor’s opinion for the Court majority said, “We hold that the Law School has a compelling interest in attaining a diverse student body.” The reason given was that “The Law School’s educational judgment that such diversity is essential to its educational mission is one to which we defer.” That is astounding. In no other case has the Court accepted the word of an institution that racial discrimination is essential to its performance. As described in chapter 8, when VMI, a military institute, argued that preserving an all-male student body was necessary to the kind of education and training it offered, the Court simply brushed the argument aside without a trace of deference. Deferring to the judgment of the discriminating institution that its discrimination serves a compelling interest is to eviscerate the test of strict scrutiny. The difference between VMI and Grutter cannot be explained on legal grounds. The explanation is political: a majority of the Court is dedicated to feminism and to affirmative action for blacks. If those political commitments require legally irreconcilable results in different cases, so be it.
The opinion attempted to disguise what the Court was doing in language that columnist Michael Kinsley aptly satirized: the law school “‘engages in highly individualized, holistic review of each applicant’s file.’ It ‘awards no mechanical, predetermined diversity “bonuses” based on race or ethnicity.’ Instead, it makes ‘a flexible assessment of applicants’ talents, experiences, and potential…’ blah, blah, blah.“19 If one were to assign real meaning to the school’s vapid rhetoric, the impossibility of its claims is apparent. In the year 2000, there were 3,432 applicants. If we assume that fully half of them were automatic acceptances or rejections, that would leave 1
,716 for “highly individualized, holistic” assessment in terms of each one’s “talents, experiences, and potential.” Or if two-thirds were automatically accepted or rejected, 1,144 would require that degree of attention. Even a three-quarters rate would leave 858 applicants for a “highly individualized holistic review.” Anybody who has served on a law school admissions committee knows that is impossible. Each file contains not merely the applicants GPA and LSAT score but a list of extracurricular activities, letters of recommendation, and his own essay on why he is a splendid candidate for admission, an essay that must be evaluated for content and style. Account must also be taken of the quality of the college the applicant attended and the difficulty of the courses taken in order to judge the weight to be given his GPA.
Individualized, holistic assessment, etc., etc., would require at least a staff of ten or twenty persons, which in turn would result in widely varying assessments of very similar individuals. To achieve any degree of consistency, the ten or twenty examiners would have to meet, discuss, and compare each of the 1,716 or 1,144, or 858 files. One can only conclude that the process described by the law school is a sham. Chief Justice Rehnquist applied that term to the school’s further claim to be seeking a “critical mass” of each of the specified minority groups—blacks, Hispanics, and Native Americans. In fact, the figures show that blacks were preferred to Hispanics. Thus, in 2000 there were twelve black and twelve Hispanic applicants in the same range of GPAs and LSATs. Only two of the Hispanics were admitted but all twelve blacks were. Columnist Mark Steyn remarked that
the court has dignified “diversity”—a flag of activist convenience, a wily obfuscation—as a compelling state interest, and on its promoters’ terms. “Diversity” doesn’t extend to, say, some dirt-poor fundamentalist white trash. Her presence wouldn’t “enrich” anyone. “Diversity” means more blacks. That’s why traditional African-American colleges are exempt from its strictures: as 100 percent black schools, they’re already as diverse as you can get.20
The majority opinion even quoted Justice Lewis Powell, whose constitutionally incoherent Bakke concurrence introduced the diversity concept into constitutional law. He said that an admissions program that used race as a “plus” factor would weigh a white applicant’s qualifications fairly and competitively so that “he would have no basis to complain of unequal treatment.“21 He would be rejected because his skin color did not qualify him for the “plus” factor, but he would have no reason to complain? For incoherence, that is on a par with the majority opinion in Grutter: since there are serious problems of justice when a race is preferred, “narrow tailoring, therefore, requires that a race-conscious admissions program not unduly harm members of any racial group.” Apparently Grutter, excluded solely because of her race, was only duly harmed.22
Quoting Lewis Powell again, Justice O’Connor said, “‘[S]ome attention to numbers,’ without more, does not transform a flexible admissions system into a rigid quota.” Quite right. The result is a soft quota, but a quota nonetheless. Why a soft quota passes constitutional muster but a rigid one does not remains a mystery. Nor is there any explanation of the school’s assertion that diversity (racial, of course) is “essential to its educational mission.” The Court simply defers to that judgment, an outright fabrication. There is no evidence that learning law is enhanced by the presence in the classroom of any particular racial group. If diversity of group identities were taken seriously as essential to a quality education, the Michigan law school should endeavor to construct classes containing whites, blacks, Hispanics, Native Americans, Asian Americans, Christians, Jews, Muslims, and secular rationalists. Probably students with differing socioeconomic backgrounds should be added to the mix. Not only is the diversity rationale impossible to implement honestly, it rests upon the vicious assumption that membership in a group so defined determines the individual’s views—and that such membership is always an asset. Group membership may determine some individuals’ views, but, we had always thought, it was the function of education to break or weaken that linkage. Only then can the individual be said to be educated; only then will there be a valuable intellectual diversity in the classroom. To the extent that law is an amalgam of history, economics, political theory, logic, and the close reading of texts, what counts is the quality of the intellectual discourse, not critical masses of any racial or ethnic groups.
The expert for Michigan’s law school testified that without race consciousness the class that entered in 2000 would have had only 4 percent minorities rather than the actual figure of 14.5 percent. (There were, of course, more minorities, individuals with disparate and unique experiences in life, than that, but only favored groups count as minorities.) What would have happened to the 10.5 percent had they not been admitted to Michigan? The assumption seems to be that they would not succeed in life, an assumption that has been ridiculed as “Yale or jail.” The fact is that those not preferentially admitted to Michigan would have gone to very good but less prestigious law schools—Wisconsin or Rutgers, say—where they would have competed more successfully. In turn, Wisconsin and Rutgers would have been relieved of their own internally generated pressure to recruit minorities not equipped to compete at that level. The minorities would have received good legal educations and gone on in the profession without the self-doubt and stigma that preferential policies impose.
Yet another difficulty with the “critical mass” argument is that it has not relieved minorities of the sense of isolation. Quite the opposite. Perhaps because many minority individuals feel themselves unequipped to compete at the law schools to which they have been preferentially admitted and suspect that some stigma attaches to them, they have tended to form exclusive groups in order to feel comfortable, Justice Scalia mentioned “those universities that talk the talk of multiculturalism but walk the walk of tribalism and racial segregation on their campuses—through minority-only student organizations, separate minority housing opportunities, separate minority student centers, even separate minority-only graduation ceremonies.” This is to be expected whenever coerced “diversity” reigns. Peter Wood wrote that “all those diversities are, in the end, species of illusion. They pump life and energy into the assertion of the radical separateness of all the parts, and then childishly prate about the unity that is sure to follow.” Commenting on Martha Nussbaum’s defense of diversity doctrine by picturing today’s campuses as places where faculty and students grapple with issues of human diversity. Wood says “The ‘grappling’ is her ennobling conceit for the festering discontents, censorship and fear; the gloating privilege; the rotting intellectual insecurity; and the regnant falsehoods that diversity has brought to most campuses.“23
Shelby Steele, a research fellow at the Hoover Institution, explains such self-imposed segregation on campuses: “Because diversity works by group preferences, all the individuals in these beatific diverse environments must pursue a good part of their self-interest through their racial groups. The incentive is to make a tribe of ones race. You end up with a racialist diversity going more toward segregation than integration.” The root of the policies the Supreme Court endorsed, he said, is a spurious moral authority rooted in “the summary indictment of America that emerged in the ‘60s from the convergence of so many social protest movements—civil rights, anti-war, feminism, farm workers, environmentalism, etc. The compound effect of all this protest was to cast America as a spiritually empty, greedy, racist and imperialistic nation—a malevolent force in the world.” Anti-Americanism, he points out, is a formula for power because of its faux moral authority.24 It is sad, in fact unnerving, that the Supreme Court has now endorsed this outlook.
Whatever else may be said of racial and ethnic preferences, it seems undeniable that they inflict injustices on both those who are excluded and those who are included because of their race or ethnicity. At least equally serious, the defense of the indefensible requires conspicuous intellectual dishonesty by the institutions that practice discrimination and by the cour
ts that ratify that practice. As lies and half-truths become increasingly necessary to sustain the charade, there will inevitably occur the progressive loss of individual and institutional integrity. Finally, the effect of Grutter will not be confined to universities; the decision ratifies discrimination in the name of diversity (which is already the common practice) in government and private-sector employment and promotion. What is morally acceptable for higher education must be acceptable everywhere. Race relations will not be improved; probably they will be worsened, for which the cure will be more diversity and mandatory sensitivity training to change thoughts and attitudes as well as behavior. These are very high prices to pay for the empty moral posturing that lies at the root of the concept of diversity. But at least our Olympians will feel good about their virtue.
THE HOMOSEXUAL MOVEMENT
How should parents react when a son or daughter announces that he or she is “gay”? The Supreme Court has adopted a principle that, by its own logic, suggests that the parents should be indifferent, that the question of sexual “orientation” is nobody’s business but the sons or daughters, and that any contrary attitude is nothing more than bigotry. That answer is not only morally perplexing but has absolutely no plausible connection to the Constitution the Court claims to be interpreting. The Court’s answer, however, has everything to do with the modern liberal attitude toward sexuality.
That answer was given in Lawrence v. Texas,25 which effectually made homosexual sodomy a constitutional right by means of an argument that owes nothing to law but everything to a subsophomoric moral argument.
Viewed narrowly, what was at stake in Lawrence was the state’s criminal statute prohibiting homosexual sodomy between men. Lawrence and Garner were seen engaged in sodomy in an apartment by a police officer who was lawfully on the premises. Fined $200, they took the case, ultimately, to the Supreme Court. The Court majority, in an opinion by Justice Kennedy, struck the statute down as a violation of the liberty said to be guaranteed by the due process clause of the Fourteenth Amendment.
Slouching Towards Gomorrah Page 42