One other thought on the Michigan affirmative action case… the university here is claiming that a diverse student body (viewpoint and experience diverse, with race used as a proxy—it’s settled law that mere racial diversity is invalid on face as a state purpose) constitutes a “compelling state interest.” There’s some dicta from Justice Powell in Bakke that suggests he, at least, thought that it was potentially a CSE, but is it? Part of the problem is that we don’t have a terribly clear standard for what constitutes a “compelling state interest.” Sometimes you see it described is as an “interest sufficient to override a protected right,” which helpfully informs you that it overrides just in case it overrides. Still, we can feel it out sort of Jesuitically by looking at other instances in education and generalizing.

We know that in Wisconsin v. Yoder, the state’s interest in mandating that education continue to the high school level wasn’t sufficiently compelling to justify the burden on the free exercise rights of Amish parents. If we look at Establishment cases like Mitchell v. Helms or Zelman v. Simmons-Harris, there’s some dispute between the plurality or majority and the dissent whether certain kinds of aid, when appropriately neutral, have the effect of advancing religion. But it’s taken for granted that when there is such an effect, there’s no question of the state’s interest in promoting the education of its children trumping or overriding the prohibition on advancing religion.

Now, if those aren’t sufficiently compelling educational interests, there’s a limited number of ways that we can conclude that a particular virtue of higher level education—the virtue of a certain sort of diversity in the student body—is compelling. We can say that Equal Protection is very far down the ladder from Free Exercise and Establishment considerations, that it gets much less weight. That’s an unpalatable result, and certainly not one that proponents of affirmative action are likely to be happy with. (Tangent: What if a school told an applicant “Sorry, you’ve got the wrong religion. We’d have taken you if you were a Lutheran, but you lose points for being an atheist”?) We can decide that somehow this particular characteristic of higher state provided education is much more important than the interest in general primary education. That’s also hard to buy. Now, one might argue that we have to index our notion of what’s compelling to the burden on the right in question. So maybe Equal Protection and Free Exercise are on the same footing, but preventing someone from effectively making their own child part of their religious culture is a more serious burden on exercise than denying someone a spot they’re otherwise qualified for on account of race is on Equal Protection rights. But if we think proportionately, that seems unlikely to be true as well. Weigh the burden of X% of the (potential) student body being denied access to a state university education against the interest in providing (100-X)% of the student body with the qualitative benefit of a peer group that’s X% more diverse. Again, doesn’t seem quite right. The magnitude of the diversity benefit scales with the number of people denied the (presumably greater) benefit of the spot because of a racial classification. Remember that you’re not counting the full benefits of any kind of diversity, either. You’re counting the marginal addition to diversity that can’t be captured by means of non-suspect classifications like geography, personal history and life experience, and economic status.

Elsewhere in the First Amendment: the right to free speech can be limited by, say, the interest in protecting us from attack by classifying some information as military secrets or whatnot. But there are a whole lot of less urgent (though noble sounding) things states might want to do that required suppression of speech, and there we want the right to be pretty robust. Banning racist speech in public might very well have good effects, especially in racially charged neighborhoods. But below the threshhold of imminent threats like, say, incitement to riot, we don’t do it.

Diversity is obviously a good thing. But we don’t want constitutional barriers to fold in the face of every good thing. We set—and should want to maintain—a pretty high bar for what trumps one. The interest in conferring upon some students the marginal diversity benefit that can’t possibly be captured through other means, tacked on to the benefit of education at a state-run institution, doesn’t seem to cut it.