- The Washington Times - Tuesday, June 24, 2003

Taken together, Monday’s two Supreme Court rulings on racial preferences in college admissions policy represent a large step backward — away from the goal of a colorblind society. Justice Sandra Day O’Connor wrote the majority opinion in a 5-4 decision upholding the University of Michigan’s use of racial preferences in determining who gets admitted to its law school. The law school ruling overshadowed the court’s 6-3 vote to reject a more blatantly discriminatory undergraduate admissions policy, which gave students from certain minority groups 20 points on a 150-point scale — eight more points than are earned by a perfect SAT score.

Defenders of race-based admissions, led by University of Michigan President Mary Sue Coleman, were celebrating (both on- and off-camera.) Unfortunately, they have reason to be happy, for now: Justice O’Connor’s opinion in the law-school case gives college administrators virtually carte blanche to discriminate at will against members of non-favored racial groups (i.e., whites and Asians.) And, even in the case involving undergraduate admissions, the court’s ruling leaves plenty of wiggle room for college administrators to come up with new ways to count by race, all the while pretending they’re doing no such thing.

In her majority opinion in the law-school case, Mrs. O’Connor made an unfortunate attempt to build upon a dubious compromise proposal put forward in a 1978 opinion by the late Justice Louis Powell in the Bakke case, in which a school reserved a set number of places for minorities. In a concurring opinion, Powell wrote that race should be used as an additional factor in admission decisions.

In practice, this formulation has given racial bean-counters plenty of leeway to discriminate in the name of achieving a more “diverse” student population. But until now, Powell’s theory had never been adopted by a majority of the Supreme Court. Thanks to Justice O’Connor, it’s the law of the land.

We agree with sentiments expressed by Justice Clarence Thomas in his withering dissent, in which he quoted from a speech by the noted black abolitionist Frederick Douglass, delivered nearly 140 years ago. “What I ask for the negro is not benevolence, not pity, not sympathy, but simply justice…. All I ask is, give him a chance to stand on his own legs. Let him alone!”

Moreover, as George Will astutely points out, such race-conscious remedies are inevitably being overtaken by demographic realities, such as rising rates of intermarriage, and the fact that race and ethnicity have become “extremely fluid, hence dubious, scientific categories.” “African Americans,” he points out, include the descendants of African slaves and recent voluntary immigrants from Africa. “Hispanic Americans” include Cubans, Dominicans, Guatemalans and Argentinians — but not Brazilians. Many Hispanics and Arab Americans choose to describe themselves as white on Census forms.

Mrs. O’Connor’s support of counting by race in order to achieve diversity is also at odds with public opinion. A Gallup Poll taken June 12-18 shows that, while Americans support the concept of affirmative action, they oppose preferences. By a 69-27 percent margin, they believe that college applicants should be admitted solely on merit; Hispanics, incidentally, support this premise by a 59-36 margin.

Now, the chief question for opponents of preferences is how to go about changing the Supreme Court’s approach. Unfortunately, even if Justice O’Connor leaves the court, justices will still be institutionally reluctant to reverse themselves anytime soon. Given their unpopularity and the inexorable demographic facts, and we can hope racial preferences will fade in the coming decades.

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