Ethics Newsline®

At their best, high court decisions in any nation address profound moral questions. So it was last week in the United States, where the Supreme Court handed down three opinions on gay sex, Internet use in libraries, and racial diversity on university campuses.

In overturning a Texas sodomy law, the court essentially removed legal restrictions on sexual activities among consenting adults of the same gender. While establishing a significant precedent, it directly benefited a fairly small constituency.

In requiring Internet filters for online computers at public libraries that accept federal funding, the court sought to shield young viewers from pornography. Since adult users may still ask librarians to turn off the filters, the impact affects a large clientele, though in modest ways.

By contrast, the cases concerning admission policies at the University of Michigan affect a huge population in profound ways. They benefit minorities in a nation that will, before long, have a “majority minority” complexion to its demographics. And they do so by affirming that racial diversity in higher education is a first-intensity public good. In her ringing endorsement of the right of the university to consider race in admitting students, Justice Sandra Day O’Connor wrote, “In order to cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity.”

Why, then, wasn’t the decision upholding the university’s law school admissions policy a 9-0 vote? Why did it only scrape by with 5-4? Because like every genuinely tough decision, this one involved two powerful and competing rights. Doing so, it put two persuasive ethical positions into conflict with each other.

The first position, held by those who favored taking race into account in admissions programs, adopted the ends-based, utilitarian perspective. Under this rubric, ethics gets done when you do the greatest good for the greatest number. That means you pay attention to consequences. And so it was for Justice O’Connor, who, citing an amicus brief filed in the case, noted that “numerous studies show that student body diversity promotes better learning outcomes, and ‘better prepares students for an increasingly diverse workforce and society, and better prepares them as professionals.’” Hammering home the favorable consequences of this “greatest good” argument, she noted that “these benefits are not theoretical but real, as major American businesses have made clear that the skills needed in today’s increasingly global marketplace can only be developed through exposure to widely diverse people, cultures, ideas, and viewpoints.”

On the other side, among those who voted for race-blind admissions policies, the arguments came largely from a rule-based, Kantian perspective. Under this rubric, ethics gets done when you hold unswervingly to a principle that you would like to see applied universally and eternally, regardless of the consequences of the moment. This view of ethics has led artists through the ages to depict justice as an individual (usually a woman) holding a set of scales and wearing a blindfold — unaware, in other words, of the particular set of circumstances in any given case and concerned only about the broad precedent. That perspective comes through most powerfully in Justice Clarence Thomas’s argument for race-blind admissions. “Every time the government places citizens on racial registers and makes race relevant to the provisions of burdens or benefits, it demeans us all,” he wrote in his dissent. “No one would argue,” he continued, “that a university could set up a lower general admission standard and then impose heightened requirements only on black applicants. Similarly, a university may not maintain a high admission standard and grant exceptions to favored races.”

And therein lies the crux of this case. The desired end state is not in question. Both sides yearn for a genuinely equal society in which race has no more impact on our perception of others than the shape of their ears. As Justice O’Connor concluded, affirmative action should “no longer be necessary” twenty-five years from now. The question is, Can you get there by taking race into account along the way? Rule-based thinkers say you cannot. Ends-based thinkers say you must.

Ethically, both are right. Both are adhering to long-established and noble traditions of moral reasoning. And both honor the frameworks of the others’ decision making. Yet in the end, as happened last week, issues must be resolved and one side must prevail. That a discussion of so potentially inflammatory a topic as race in the United States could be conducted with civility and grace — without the nasty, jugular-seizing rhetoric of so much political speech, where each side seeks dominance by vilifying the other — is a testament to the power of ethical discourse to sustain a culture of respect.

(c)2003 Institute for Global Ethics