The Departments of Justice and Education have issued a guidance document regarding Schuette v. BAMN, a Supreme Court case holding that a Michigan law requiring equal protection under the laws does not violate the Equal Protection Clause. (Yes, you read that right — see this essay by Gail Heriot for a dissection of the plaintiffs’ contortions of logic.)

The Fourteenth Amendment’s guarantee of equal protection under the laws has been interpreted to mean that state governments cannot enact laws that discriminate on the basis of race, unless such laws are justified by a compelling interest and narrowly tailored to serve that interest. The Supreme Court has recognized only a tiny number of interests compelling enough to qualify. Among them are national security, remedying specific and particular past discrimination, and attaining the educational benefits associated with student body diversity at selective institutions of higher education. Regarding the last of these compelling interests, Schuette holds that while it is sometimes constitutionally permissible for a university to use racial preferences to attain a more diverse student body, it is not constitutionally required that institutions should do so. In light of the many cases holding that the Equal Protection Clause requires non-discrimination and allows racial discrimination only in limited circumstances,  the outcome of Schuette was not terribly surprising.

Yet DOJ and ED begin their guidance document noting that “Schuette leaves intact the Court’s prior holdings recognizing that institutions of higher education and elementary and secondary schools may use all legally permissible methods to achieve their diversity goals…. The Departments of Education and Justice strongly support diversity in elementary, secondary, and higher education, because racially diverse educational environments help to prepare students to succeed in our increasingly diverse nation. The educational benefits of diversity, long recognized by the Court and affirmed in research and practice, include cross-racial understanding and dialogue, the reduction of racial isolation, and the breaking down of racial stereotypes.” The guidance document reads rather as though the vigorous promotion of racial preferences constitutes the core of the Fourteenth Amendment and non-discrimination lies on its periphery,  when in fact the reverse is true. ED and DOJ apparently stand eager to help those educational institutions who want to use racial preferences legally, but cannot even acknowledge the existence of institutions that would prefer not to discriminate.

The guidance also goes on to state grandly that “Furthermore, to be successful, the future workforce of America should transcend the boundaries of race, language, and culture as our economy becomes more globally interconnected.” Perhaps ED and DOJ are right about what tomorrow’s economy will require, or perhaps not: maybe the marketplace will end up richly rewarding employees who are talented scientific innovators but who remain trapped within the boundaries of American culture. Who of us can say?