The government should have the power to accept or reject students for spots at public universities, on account of their race, in order to “[narrow] the glaring gap between the social conditions of underrepresented minorities and those of Caucasians.” At least that’s according to the brief filed yesterday by members of the City Council in the Michigan affirmative action case currently before the Supreme Court. Council members — including the body’s speaker, Gifford Miller, Charles Barron, William Perkins, Bill de Blasio, and David Yassky — signed onto the brief, which pays short shrift to current legal justifications for racial preferences and in their place espouses a greatly expanded rationale.

The traditional legal argument in favor of racial preferences, drawn from the landmark Bakke Supreme Court decision, is that diversity on campuses is a “compelling state interest” and that so long as affirmative action programs are “narrowly tailored” they are permissible. Realizing, however, that the status of diversity as “compelling” is on shaky ground — only Justice Powell called diversity compelling in Bakke, while his four concurring justices demurred — the City Council put forward its own idea of exactly what kind of state interests it considers compelling.

“Students applying to any university program today live in a country with a startling gap between the economic and social conditions of under-represented minorities and those of Caucasians,” the brief states. “Confronting the existing disparity and helping to close the gap in social conditions is a compelling state interest.” Caucasian median family income is higher than that for African-Americans; and “at least one study” has found a clear “wage premium” associated with attending a selective university. Thus, since “Affirmative action contributes to closing the gap in social conditions between minorities and Caucasians,” it ought to be employed.

This expansive argument is unlikely to carry the day. Even if “closing the gap” were ruled a compelling state interest, it seems more than a bit doubtful that racial preferences in university admissions would be considered “narrowly tailored” to that end. After all, there are many alternative policies that might achieve the same end, possibly with less adverse effects. And since the bulk of the benefit of affirmative action goes to the middle class — as a “plus factor” or bump up is unlikely to help the truly impoverished — the tool of race-based college admissions looks somewhat wide of the mark. The Supreme Court, in City of Richmond v. J.A. Croson Co., has already cast aspersions on racial preferences outside of strictly remedial settings. “Classifications based on race carry a danger of stigmatic harm,” Justice O’Connor wrote in 1989 in her majority opin ion. “Unless they are strictly reserved for remedial settings, they may in fact promote notions of racial inferiority and lead to a politics of racial hostility.”

It’s unlikely the Court will now reverse course in order to allow the state a freewheeling hand to remake the social landscape as it chooses at the cost of the rights of individuals. But a politics of racial hostility is what we are offered from certain members of the New York City Council. Such politics are hostile to true innovations, such as school choice. The voucher movement has emerged as an effort by poor and minority parents to rescue their children from public schools. It is a tool that could raise countless poor and minority children out of failing schools while spurring the public schools to shape up. School choice would do far more to close the gap than the legal theories the City Council is dispensing.