The affirmative action cases split with Justice O'Connor changing the balance. The Supremes struck down the point system for undergrad admissions, but upheld the Law School's system on the grounds that the Constitution "does not prohibit the law school's narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body." So diversity is a compelling state interest.

As I wrote earlier, this seems to say that we want, nay need, minority students at major universities, not to benefit them or their communities, but to enhance the educational experience for the rest of the students. We no longer require teaching of the classics, but we must have diversity.

Update: Professor Volokh has an interesting comment on a exchange between Rehnquist and Ginsburg in the Gratz case. Justice Ginsburg seems to argue that, since universities will seek racial quotas by subterfuge anyway, it would be better to allow them to do so plainly and openly, in the interest of candor. Rehnquist responds that she seems to be arguing that the Court should wink at unconstitutional policies because "they're going to do it anyway." (My quote, not theirs) I think Ginsburg's argument is unworthy of a Supreme Court Justice, and is based on a cynical despair of ever achieving a truly race neutral society.

The real problem with racial preferences is that they imply that the majority of society knows that the minorities they stoop to reach can't achieve the levels of performance that everyone else, even people like Miguel Estrada achieve without affirmative action. They debase the legitimate achievements of individuals, and send an insidious message to minorities, "Your skin color makes you a 'special class.'" True Affirmative Action would reach out, finding ways to identify talented youth from disadvantaged backgrounds and give them opportunities to overcome their setbacks. This approach is harder to do and is less likely to focus on skin color. Maybe that's why Democrats won't support it.