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Argument faulty in affirmative-action ruling

- The Washington Times - Wednesday, June 25, 2003

In 25 years, we hope that Jim Crow won't be necessary. In 25 years, we suspect that denying habeas corpus will no longer be required. In 25 years, we expect that the First Amendment will apply to everyone. Next month, we feel that anti-trust laws can be fully enforced. On Wednesdays, the Constitution does not bar cruel and unusual punishment. Every third Friday during the summer months, it will be OK to yell fire in a crowded movie theater.

These statements are no less absurd than Sandra Day O'Connor's declaration that "we expect that 25 years from now, the use of racial preferences will no longer be necessary." From what I can tell, the upshot of O'Connor's ruling is that special treatment for blacks, Hispanics and Native Americans is constitutional but giving special treatment to Italian-Americans, Jews or Asians (to randomly pick three non-preferred groups) will remain legally unconstitutional and socially racist. But, in 25 years, presumably, the Constitution will revert to something more reminiscent of the actual text.

Let me put it another way. In 25 years, my daughter will be just about the right age to go to law school. If she applies 24 years from now, according to the Supreme Court, it will be OK for the University of Michigan to hold my daughter to higher academic standards than it applies to upper-class Hispanics, blacks and Native Americans (assuming that list doesn't grow), but in 26 years O'Connor "expects" that somehow the Constitution will be clear: no more racial discrimination.

Doesn't anybody see what a pernicious and horrendous argument that is? At least when the Supreme Court normally permits the government to suspend conventional constitutional protections, it requires exigent circumstances - war, fire in a theater, a ticking bomb, etc. With race relations and African-American economic and social advancement at record highs, it's hard to see where the ticking bomb is.

To be honest, as much as the idea that our Constitution take "time outs" from full enforcement based upon the whimsy of a few justices offends me, I would live with it if I believed the sand of racial preferences would run out of the timer in 25 years.

But there's absolutely no reason to believe that will happen. First of all, unlike affirmative action, the logic of diversity is permanent. Affirmative action was conceived of as a temporary remedy for the debilitating effects of past discrimination against one group: the descendents of African slaves.

Preferences for the sake of diversity benefit Hispanics, Native Americans, newly arrived immigrant Africans and whichever boutique ethnicity has a complaint against the United States. If women didn't make up the majority of college-bound students, there would still be wholesale affirmative action on that score, too (it certainly exists retail in college athletics and - coming soon - science and engineering).

The Supreme Court simply accepts the University of Michigan's "educational judgment that such diversity is essential to its educational mission." It identifies "educational benefits" stemming from "cross-racial understanding" and the improved preparation of "students for an increasingly diverse workforce and society."

Why do those educational benefits have an expiration date? It's not like anyone would say that in 25 years math or reading won't be as helpful as they are today. O'Connor may be using the language of diversity she inherited from the Bakke decision 25 years ago, because that's what the left has hung its arguments on. But everyone understands she really means affirmative action, quotas and special breaks.

After all, if diversity were really the issue, wouldn't we be fighting to diversify all of the historically black and all-female colleges that currently deny their students the glorious educational benefits a diverse student body provides?

But even if we could trust the Supreme Court to honor this deadline (a huge "if" when you consider this was a 5-4 decision), how can we trust the left to abandon the permanent doctrine of diversity?

For example, on the Sunday before the Supreme Court announced its decision, Dick Gephardt promised an African-American audience that he would not permit the court to rule against racial preferences for the sake of diversity: "When I'm president, we'll do executive orders to overcome any wrong thing the Supreme Court does tomorrow or any other day."

In other words, Dick Gephardt - a longtime champion of the small-d democratic prerogatives of the House of Representatives -believes that diversity is so important he would simply repeal whatever the court decided by imperial diktat.

This makes complete sense when you think about it. After all, the logic of diversity says that a "fair chance" - i.e. equal opportunity - isn't enough, we must now have a "fair result" - diversity at any cost. Well, if that's what you believe, why shouldn't you overturn the court or Congress with the stroke of a pen? I guess the only good news is that we're unlikely to face a president willing to test his dictatorial notions of presidential power for another 25 years.

Jonah Goldberg is editor at large of National Review Online.