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Sandra Day O’Connor was sold a bill of goods. In the Supreme Court’s Grutter v. Bollinger case decided last week, hers was the swing vote upholding the use of racial preferences at the University of Michigan Law School. O’Connor’s opinion for the Court was notable because it accepted at face value the law school’s argument that it has a “compelling governmental interest” in achieving diversity on campus. Ordinarily, governmental policies that classify or sort people on the basis of race are inherently suspect. Well-established 14th Amendment jurisprudence requires that courts subject any such policy to “strict scrutiny.” Applying the strict-scrutiny doctrine, the Court, until last week, had upheld only those racial classifications justified by “pressing public necessity” (i.e., national security) or by the need to remedy specific acts of past discrimination for which the government is responsible. With a stroke of her pen, however, Justice O’Connor last week added “diversity” to that narrow list of constitutionally acceptable justifications for discrimination. As other commentators have already pointed out, Justice O’Connor’s blind deference to the Michigan Law School’s purported interest in “diversity” hardly amounts to strict scrutiny review at all. Had O’Connor, in fact, strictly scrutinized the law school’s rationale for racial preferences, she would have seen that the “diversity” rationale is nothing more than a pretext for naked racial balancing. DIVERSITY AS PRETEXT The law school proffered an interest in achieving a diverse student body as its justification for its discriminatory policies. Justice O’Connor accepted this rationale, explaining that the law school’s policy “does not restrict the types of diversity contributions eligible for ‘substantial weight’ in the admissions process.” But O’Connor also concedes that the policy aims to achieve a “critical mass” of African-Americans, Hispanics, and Native Americans, “who without this commitment might not be represented in [the] student body in meaningful numbers.” The fact that Catholics, Palestinians, and Italian-Americans might also lack representation in the law school student body in “meaningful numbers” appears to be irrelevant to the admissions officers. Perhaps the perspective that members of these groups would bring to the classroom is not worthy of an audience. Indeed, as Justice Anthony Kennedy pointed out in dissent, many of the same faculty members who so forcefully argue, in briefs and at cocktail parties, in favor of diversity in the student body are the first to reject Cuban-Americans as insufficiently Hispanic or to vote against hiring conservative minorities for faculty positions. Putting all that aside, however, it is clear that if the law school really believed that it had a compelling interest in achieving a diverse student body, it could do so without discriminating — by, for example, drastically reducing its reliance on undergraduate grade point averages and LSAT scores, or by admitting students simply on the basis of a lottery. Yet Justice O’Connor adopts unquestioning the law school’s position that nondiscriminatory approaches are untenable because they would “require a dramatic sacrifice” in the academic quality of all students. In other words, diversity is a compelling enough objective so as to justify discrimination against persons who are not members of certain romanticized groups, but not so compelling as to sacrifice the school’s academic reputation or its standing in U.S. News & World Report. In all the talk among the chattering classes about the merits of the Court’s opinions and the role of affirmative action in university admissions, the larger implications of the Court’s rulings on the law school and undergraduate policies seem to have been lost. (The Court struck down the undergraduate school’s racial preference program in an accompanying case, Gratz v. Bollinger.) Although the cases were hyped as placing the future of affirmative action in question, the continued use of racial preferences — at least in college and graduate admissions — was never really in doubt. True, the Court could have come out the other way, holding that racial preferences are always unconstitutional. But the Court has no independent enforcement power. And the liberal intelligentsia who control America’s colleges and universities never had any intention of ending their entrenched racial spoils system, even if the Supreme Court had said that they must. The precise outcome of these cases was, therefore, irrelevant to the fate of affirmative action. A decision either way would not have significantly changed the facts on the ground. But the outcome of the Michigan cases, however, is indicative of the way in which Justice O’Connor perceives the Court’s institutional role, and this is relevant to the larger question of the Court’s legitimacy. In her recent book, The Majesty of the Law, Justice O’Connor comments that the courts “are mainly reactive institutions,” and that “rare indeed is the legal victory — in court or legislature — that is not a careful byproduct of an emerging social consensus.” Clearly, Justice O’Connor viewed the onslaught of briefs in support of Michigan as evidence of just such a consensus. Perhaps the good justice did not include Californians, who in 1996 voted overwhelming to eliminate racial preferences, in her random sampling of public opinion. One wonders what O’Connor makes of the Gallup Poll released on June 24, indicating that 69 percent of Americans believe that college applicants “should be admitted solely on the basis of merit, even if that results in few minority students being admitted.” So much for an emerging consensus. By departing from established Supreme Court precedent in order to endorse the fashionable views of the liberal elite, Justice O’Connor effectively confirmed that the so-called Legal Realists have it right when it comes to constitutional law. The real import of the Michigan cases is not that they uphold the use of racial preferences, but that they provide clear evidence that a majority of the justices are political actors who operate on the principle that the law is the law “because we say so.” BRING ON THE LAWSUITS The Michigan decisions also undermine the legitimacy of our legal system in another way: by increasing the already high levels of frivolous litigation. By endorsing the diversity rationale, but making each college or university’s plan subject to fact-specific inquiry, the Court has essentially created a full employment plan for lawyers. The Court’s decisions encourage every rejected applicant to college or graduate school to file a lawsuit. No doubt colleges and universities forced to defend numerous admissions decisions in court will ultimately pass their increased legal costs on to the students in the form of higher tuition. Justice Antonin Scalia correctly noted in his dissenting opinion that “unlike a clear constitutional holding that racial preferences in state educational institutions are impermissible, or even a clear anticonstitutional holding that racial preferences in state educational institutions are OK, [the] Grutter-Gratz split double-header seems perversely designed to prolong the controversy and the litigation.” The result will inevitably be diminished confidence in the rule of law and in the basic fairness of the American legal system. Despite all the evidence to the contrary, then, Justice O’Connor seems quite amazingly to have been duped into believing that American colleges and universities seek genuine and broad-based diversity, that the American people support the use of naked racial preferences, and that the majority’s decision for the Court has helped to clarify the law of equal protection. If you believe all that, Justice O’Connor, I’ve got a bridge in Brooklyn I’d like to show you. Jennifer C. Braceras is senior fellow for legal policy at the Independent Women’s Forum and serves as a commissioner on the U.S. Commission on Civil Rights.

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