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For those who stubbornly cling to the elder Justice Harlan’s conviction that “our Constitution is color-blind, and neither knows nor tolerates classes among citizens,” last month’s Supreme Court twin Michigan decisions were more than disappointing. They were catastrophic. A majority has now embraced the view, once held only by Justice Powell, that “diversity” is a compelling state interest justifying racial discrimination. In striking down Michigan’s numerical undergraduate discriminatory program, while affirming Michigan’s more “nuanced” law school discriminatory program, the court ensured that all future racial schemes will be subtle, subjective, and difficult to trace. Finally, the majority eviscerated the requirement that racially discriminatory remedies be time limited. Instead, in language so casual it borders on glib, Justice O’Connor speculated that perhaps 25 more years of racial preferences might be necessary, and perhaps not. Two days after the Michigan decisions, the Supreme Court overturned Bowers v. Hardwick, thus proving that the court is capable of acknowledging its mistakes and correcting them. Good. It should do so again, and soon. The 5-4 majority in the Michigan Law School case looked back 25 years to Bakke for guidance. Bakke dealt with a medical school admissions program where 16 out of 100 places were set aside for racial minorities. Four justices voted to uphold the program and four to invalidate it. Although he cast the decisive vote invalidating the program, Justice Powell observed that race might be justifiably employed for “the attainment of a diverse student body.” No other justice joined with him in that view. After Bakke, the Supreme Court repeatedly recognized that state-imposed racial preferences are “pernicious” and severely limited their use. Generally, the court required the states to show that the preferences were employed to remedy past discrimination. While some lower courts wrestled with the constitutional warrant for using “diversity” to justify racial discrimination, the Supreme Court never accepted the “diversity” rationale until last week. In popular parlance, “diversity” is a codeword for a set of social values. Like most codewords, it means different things to different people. “Diversity” in the Michigan cases meant racial diversity and only racial diversity. The Supreme Court did not consider whether Michigan could discriminate to ensure a culturally, economically or ideologically diverse student body. It didn’t have to. No one challenged the states’ right to attain such authentic, non-cosmetic diversity. Instead, the court considered only “one particular type of diversity � racial and ethnic diversity with special reference to the inclusion of � African-Americans, Hispanics and Native Americans.” Under the court’s diversity formulation, state educational institutions have the right to discriminate racially to achieve some vague, never quantified “critical mass” of minority group representation. A student body composed entirely of math team geeks from middle-class suburban tract houses would qualify as “diverse” — provided only that a “critical mass” of the students were of different skin color. Conversely, in the absence of that mysterious “critical mass,” a student body containing significant numbers of socialists and capitalists, of pro-life and pro-choice activists, of children of Appalachia and children of Atherton, would fail to qualify as “diverse.” Since skin color is all that matters to the court’s concept of diversity, one has to wonder how institutions will apply the “critical mass” test in the face of the growing trend toward intermarriage. Michigan Law School argued that 150 minority students was the bottom of its critical mass range. Now consider filling that range with hypothetical applications from Clarence Thomas, the son of black parents, and Lani Guinier, the daughter of a black father and a white mother. It would appear that one would provide double the diversity of the other. In the strange mathematics of the court’s racialist jurisprudence, Michigan might have to admit 300 Guiniers to attain the same quantum of diversity achieved by the admission of 150 Thomases. Some opponents of racial discrimination have taken comfort from the fact that the court struck down Michigan’s undergraduate program, which required 100 points for admission and awarded 20 points to applicants merely for belonging to recognized minority groups. But the two programs differed only in candor. While one employed race openly, the other employed race as part of a “highly individualized, holistic review” of the applicants. For those directly affected, the result was the same. As Slate’s Michael Kinsley notes: “Every time affirmative action changes the result, a minority beneficiary benefits by 100 percent and a white person is burdened 100 percent, in the only currency on issue, which is admission to the University of Michigan. This burden may be reasonable or unreasonable, but it is precisely the same size as the burden imposed by the mathematical-formula-style affirmative action that the court finds objectionable.” For proponents of racial preferences, the principal advantage of the law school program was obfuscation. Most people could understand that the undergraduate program was tantamount to starting some applicants at the 20-yard line in a 100-yard dash. But no one, including the nine justices, really understood Michigan’s “highly individualized, holistic” approach to racial discrimination. That was the whole point. Shrouded in mystery, the law school program accomplishes the same end as the undergraduate program without arousing the same public revulsion. For opponents of racial preferences, the decision to strike down the undergraduate program was a tactical defeat, depriving them of a stark illustration of the consequences of the other side’s legal principles. Justice Scalia’s reference to a “split double header” was inaccurate. The twin Michigan decisions represented a racialist blowout. All of this might have been tolerable had the majority reaffirmed its allegiance to the doctrine of limited time. In the rare instances in the past when the court permitted racially conscious remedies, it generally did so after noting their limited duration. In the Michigan case, the law school made no attempt to show that its remedies were time limited, and Justice O’Connor did not press them. She merely expressed the expectation (which concurring Justice Ginsburg stressed was a hope, not a forecast) that 25 years would suffice to sunset the program. Because of his Bakke opinion, Justice Powell might be deemed the father of constitutional racial diversity. If so, the O’Connor decision is one child he would probably choose to disown. Commentator Stuart Taylor (referring to John C. Jeffries’ biography of Powell), recounts that when the justices deliberated over Bakke, Powell thought that preferences might be acceptable as a temporary measure. Thurgood Marshall interjected that such programs would be necessary for another hundred years. “This remark left Powell speechless � . He recoiled from the prospect of generation upon generation of racial quotas.” We have already had one generation since Bakke, and now Justice O’Connor promises another. In fact, none of the programs employed by Michigan and other elite educational institutions attack the core problem: the numerical shortage of qualified minority applicants. All they do is set the rules by which these institutions may compete with one another for the limited supply. By suggesting that such programs may be used as long as the core problem remains, Justice O’Connor was signing off on a permanent regime of racial preferences. What is to be done? For those who see racial preferences as morally wrong, counterproductive, or both, the first thing is to recognize what has happened. When Neville Chamberlain returned from Munich promising “peace in our time,” Winston Churchill did not waste time rationalizing. He told the citizenry: “We have sustained a total and unmitigated defeat.” Churchill realized that his countrymen needed bracing honesty, not comfort, to face the trials ahead. We do too. Which is why it was disappointing to see the White House Press Office Rumpelstiltskins try to spin the Supreme Court’s straw into gold. “I applaud the Supreme Court for recognizing the value of diversity on our Nation’s campuses,” stated President Bush, according to a White House press release issued shortly after the decisions were handed down. “Diversity is one of America’s greatest strengths. Today’s decisions seek a careful balance between the goal of campus diversity and the fundamental principle of equal treatment under the law.” The statement did not try to reconcile the president’s “applause” with the inconvenient fact that Justice O’Connor had squarely rejected the arguments advanced by the president’s attorney, Solicitor General Theodore Olson. Orrin Hatch, the Republican chair of the Senate Judiciary Committee, and a man once touted as a possible Supreme Court nominee himself, also hailed the decisions as a “victory.” At least one Democrat agreed that the decisions were a victory for President Bush. USC law professor Susan Estrich so characterized the decisions because they assured that affirmative action will not be an issue in the 2004 campaign. Susan Estrich managed the campaign of Michael Dukakis so her political acumen is subject to question. Like many Democrats, and apparently like the White House, too, she assumes that a noisy debate over racial preferences would hurt the president’s prospects. The truth is the opposite. The day after the Supreme Court announced its decisions, a Gallup poll was released. It found that a slight majority of Americans (49 percent to 43 percent) favor “affirmative action.” This is not surprising since “affirmative action” is a broad term encompassing many elements — such as outreach — which do not involve imposing different standards for different races. Getting down to specifics, the poll asked whether college applicants “should be admitted solely on the basis of merit, even if that results in few minority students being admitted?” By a whopping majority (69 percent to 27 percent), the public answered yes. Skeptics might say that even if the public overwhelmingly rejects racial preferences, they will still turn against Bush if they perceive him as unfriendly toward minorities. But the Gallup poll shows that a colorblind platform will actually help the president win minority voters. By a decisive majority (59 percent to 36 percent), Hispanics favored a merit-only process over one that considered an applicant’s racial and ethnic background. Among blacks, the presumed main beneficiaries of such programs, the numbers were close: 44 percent favored the merit-only approach, compared to 49 percent who favor taking race into account. Although this shows slight plurality support for preferences among blacks, it is a far cry from the kind of uniform support assumed by pundits of both parties. In fact, color-blindness is far more popular among black voters than Republicans are. No Republican presidential candidate in modern history has come close to garnering 44 percent support from black voters. (George Bush won about 8 percent.) Voters are smart. Any candidate perceived as pandering to residual white bigotry is likely to fare poorly, not just with minorities but with white progressives as well. But a Republican candidate running as a principled opponent of racial preferences would be running on the right side of history. He would likely gain, not lose, minority support. If the White House is serious about opposing racial preferences in favor of race-neutral solutions, it will not hesitate to make the Michigan decisions a campaign issue in 2004, notwithstanding its earlier press statement. Taking heart from Lawrence v. Texas, in which the court acknowledged its mistake of 17 years ago, and struck down a state statute criminalizing private consensual homosexual activity, the Bush campaign should call for a court composed of justices who will correct the mistake in the Michigan Law School case. The president should vow to appoint to any high court vacancies only those jurists who will support race-neutral standards. He should campaign for Senate candidates who will vow to confirm such nominees, and he should campaign against Senate candidates who will not. Is this a litmus test? Well, yes. Democratic presidential candidates have imposed the same kind of test on the abortion issue. Agree with them or not, one has to admire their sense of moral certainty. This same kind of moral certainty, articulated and advanced by the top of the Republican ticket, will be required to avoid 25 more years of government-sponsored racialism. Contributing Writer Lawrence J. Siskind, of San Francisco’s Harvey Siskind Jacobs, specializes in intellectual property law. He can be contacted at [email protected] recorder.com.

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