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WASHINGTON — In the aftermath of the affirmative action rulings by the U.S. Supreme Court, some key opponents of racial preferences predict a turning away from the courts as the great right hope in ending what they fervently believe to be an unconstitutional use of race in America. Even the prospect of a Supreme Court vacancy, which might change the voting calculus on this divisive issue, leaves affirmative action opponents with little hope of a reversal of the Michigan law school admissions decision for another decade or more. “It’s a total defeat,” said U.S. Civil Rights Commissioner Abigail Thernstrom, who has written and spoken against race preferences for 25 years. “It really doesn’t matter if there is a Supreme Court resignation. This is a momentous decision rewriting the equal protection clause of the 14th Amendment, and the Supreme Court is not going to overturn precedent with abandon because there is a new justice.” In Grutter v. Bollinger, 02-241, a 5-4 high court held that a diverse student body was a compelling government interest and that the University of Michigan’s law school admissions program was narrowly tailored to achieve that goal. The program used race as one of many factors, not the dominant factor, in an individualized review of each applicant. But in Gratz v. Bollinger, 02-516, a 6-3 majority held that the university’s undergraduate admissions program failed the narrow tailoring test because it automatically assigned a number of points to a candidate based on race, which could be determinative. “What happens in the litigation community?” asked Michael Greve of the American Enterprise Institute and co-founder of the Center for Individual Rights, which has led the fight against race-based admissions policies in Texas, Washington and Michigan. “It becomes harder to drum up money for this and harder to persuade people this is a righteous fight. “I personally would not think there’s enough oomph behind this movement now to say, ‘Let’s hold the Supreme Court to what it pretended to be saying.’ I think it will take a signal from some future court that this wasn’t really serious and there has to be strict scrutiny. In that context, you might see another charge up this particular hill, but not before then. I just think this was a complete wipeout.” Greve said litigation may continue over reverse discrimination claims, the scope of Title VII of the Civil Rights Act of 1964, race-exclusive scholarships and other issues. “You can continue to litigate those kinds of things, but the broader question is settled and everything else is sort of skirmishes,” he said. Don’t tell that to the Center for Individual Rights (CIR). Its legal affairs director, Curt Levey, said, “ Grutter and Gratz together make it virtually inevitable there will be a lot of litigation on the narrow tailoring grounds. The court said you can’t use race in a mechanical way and it should not be a decisive factor. Those are vague terms so we’re going to have to litigate in the lower courts to make sure that is a meaningful distinction and our victory in Gratz is not for nothing.” A matter of momentum In terms of momentum for litigation, Levey said, “There never really was momentum except for CIR. There has been in terms of public opinion, but public opinion doesn’t litigate in court. We’re as committed as ever.” Trying to litigate over whether programs are “narrowly tailored” to use the minimum amount of racial preference will mean examining schools individually, he acknowledged. He said schools that seem to be trying to use “good-faith alternatives” to preferences, as the court urged, are less apt to be sued than those “using the decision as a fig leaf” to conceal outright race-based decisions. “Any victory we win on narrow tailoring will have national importance,” he said. “We have to pick good targets.” Theodore Shaw, associate director-counsel of the NAACP Legal Defense and Educational Fund, said he expects more litigation. But, he added, if the law means something beyond politics, there ought to be some repose on this issue, at least for a while. “From everything I hear from CIR, that’s not what they’re thinking,” he said. “They are focusing on threatening institutions, trying to win through threats what they couldn’t win through the courts. We plan on meeting them in court and in the court of public opinion.” The anti-preference movement has relied too much on the courts to fix race preferences in higher education, said Edward Blum, senior fellow at the Center for Equal Opportunity, who has worked for years in assisting challenges to race-based admissions policies. That was logical given the “good law” the court had handed down on voting rights, government contracting and employment, he said. The movement now must put together a strategy to educate the public and change minds. “That will entail a multifaceted attack in the courts, at the ballot box, through grassroots organizations and in legislative bodies,” he said. Blum and some others in the anti-preference movement now believe ballot initiatives, such as California’s Proposition 209, which ended racial and gender preference programs, offer the best way to attack affirmative action. Proposition 209′s father, Ward Connerly, reportedly is preparing a statewide initiative in Michigan. “The efforts in California to eliminate identifications by race, ethnicity, nationality and the like, strike me as going to the heart of the matter,” said Roger Pilon of the Cato Institute. “Without these identifiers, preference programs can’t operate. The professional civil rights community knows that, which is why they are fighting the Connerly effort so assiduously.” Ballot initiatives also are attractive now because some on both sides believe the Michigan decision may resonate in areas outside of higher education. Employers, for example, may have a higher comfort level in their private affirmative action programs, they said. “I always understood education is different,” said Shaw of the NAACP. “At the same time, what may have broad impact here is the court’s recognition that not all race consciousness is unconstitutional, that, in fact, there are compelling state interests in diversity. How far that extends, I’m happy to leave to another day.” Thernstrom said that earlier “good law” on affirmative action has been turned around with Michigan. The movement should turn its efforts now to solving the academic achievement gap in K-12 education, she said. When that is solved, she added, there will be no need for racial preferences. Shaw said he would welcome a good-faith effort to work together on the K-12 problem. But, he said, “Our adversaries are not going away.” “We disagree on what needs to be done,” said Thernstrom. Marcia Coyle is the Washington, D.C., bureau chief for The National Law Journal, a Recorder affiliate based in New York.

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