The framers of the 14th Amendment may have countenanced affirmative action favoring former slaves and perhaps their descendants, but they would never have approved of today's affirmative-action programs, in which most of the potential beneficiaries are immigrants or descendants of immigrants.
But regardless of whether such programs are constitutional or not, they are undesirable public policy, indeed perverse in practice.
The Court reaffirmed this standard in the 2013 case, sending the case back to the lower court on the ground that those judges had failed to correctly apply the strict-scrutiny standard.
That standard requires "a judicial determination that the burden [the disappointed applicant] is asked to bear" in a system that takes race into account "is precisely tailored to serve a compelling governmental interest." Strict scrutiny is supposed to be, well, strict.
Racial classifications epitomize this kind of risk.
Many academic advocates of preferences, to be sure, maintain that the Court's strict-scrutiny standard, as elaborated in earlier decisions, was strict, even procrustean, and that a "benign" preference adopted by self-abnegating ethnic majorities should be judged less rigorously.
As Chief Justice William Rehnquist correctly noted in his dissent, the majority's review of Michigan's preference system was "unprecedented in its deference." The majority failed to explain convincingly why universities that sponsor preferences should receive more such deference than, say, the private employers or municipal procurement agencies whose plans the Court has struck down in the past under strict scrutiny.
After all, universities that adopt and structure such programs are responding to the same kind of political, ideological, competitive, social, legal, and institutional pressures that affect employers and government agencies.
n affirmative-action cases, the Supreme Court never seems to learn the obvious lesson, or perhaps it is determined to finesse it.
The lesson is that universities that are keen to implement race-based affirmative action (and it is hard to find a highly or even moderately selective school that isn't) will figure out a way to do so unless the Court emphatically and clearly prohibits it.