Like a bad penny, cases involving race keep turning up before the Supreme Court, largely because the high court won't definitively make up its mind how much racial discrimination it favors.
Since 1978, when the court decided race could be a factor in college admissions as long as it promoted greater racial diversity, racial preferences have become ingrained in society, from college admissions to hiring decisions and promotions to government contracting. But preferences still grate against a sense of right and wrong for most people, which is why cases continue to work their way back up before the court.
In July, the court punted on the issue in a challenge to Texas' college-admissions policy by sending the case back to the lower court. This week, the court heard arguments on whether Michigan voters violated the Constitution by forbidding state colleges from using race as a factor in deciding which students to admit.
In Proposal 2, a 2006 ballot referendum, 58 percent of voters approved amending Michigan's constitution to ban consideration of race in college admissions, state employment and government contracting. At the time, black and Latino students received substantial preference in admission to the state's most competitive campuses.
According to studies by my Center for Equal Opportunity, black applicants with the same test scores as white or Asian students were as much as 70 times more likely to be admitted to the University of Michigan at Ann Arbor as undergraduates and 36 times more likely to be admitted to the law school prior to adoption of Prop 2.
Ironically, the whole reason the initiative came to be on the ballot was because in 2003, the Supreme Court upheld preferential admissions at the University of Michigan Law School, while striking down the university's undergraduate affirmative-action plan as too rigid. The only alternative left to those who opposed the school's preferential policies was to amend the state constitution. Now, having lost at the ballot box, proponents of preferential admissions are back at the Supreme Court.
The high court may again find a way to duck the big issue. Given its composition, it is unlikely that opponents of Prop 2 will see it struck down on constitutional grounds. But the court could do what it did with the Texas case: Decide it on the narrowest legal grounds, which would leave the ban against racial preferences in Michigan in place but wouldn't settle the larger question of why government should ever be permitted to use race in discriminating against or granting preference to anyone.
Judging people by the color of their skin is never benign. It is never a good thing to say that race defines the person, for better or worse. When government allots benefits to some based on race, it necessarily means that government discriminates against others who don't share those racial characteristics.
It was wrong when government behaved in this fashion for more than 200 years to favor whites. And it's no less wrong when government does it today to disadvantage whites — and, importantly, Asians, who faced discrimination under the old system and still face it in most affirmative-action plans.
In those states that have banned racial preferences, black and Latino students are doing just fine. In fact, in California, which banned preferences in 1996, not only have the numbers of black and Latino students attending the prestigious UC system increased, but they are graduating at rates 20 to 25 percent higher and have better grades than they did prior to the ban.
We're supposed to have progressed to the point that skin color doesn't matter. Wasn't that the whole point of the civil-rights movement of the 1950s and '60s? So why do we still allow life-altering decisions to be made on the basis of race?
Unless the court decides the Michigan case broadly and decisively — upholding the state ban on preferences and deciding that government should never use race to pick winners and losers — this issue will continue to divide America.
The time to end racial discrimination is long overdue.
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