- The Washington Times - Monday, December 23, 2002

Public-opinion polls consistently find that a majority of every racial group strongly opposes racially preferential treatment (i.e., racial discrimination) in college admissions and for good reason.
It is immoral; it deepens racial divisions; and, at publicly supported institutions, it is unconstitutional. Yet, sadly, it is practiced by administrators at far too many American colleges. The justifications for this continued racial discrimination vary, including many that are well-meaning but deeply misguided. But, thankfully, the Supreme Court now has a chance to end such discrimination.
High-court decisions over the last 15 years have established that all racial classifications and race-based policies are "presumptively unconstitutional." In 1989, the high court ruled there is no such thing as a "benign" preference, even if it favors members of a race who once may have been disadvantaged a ruling strengthened by several other decisions in the 1990s. The high court held that all racial preference programs must be evaluated under the "strict scrutiny" test the most exacting in the law: The constitutionality of programs that benefit any race must be judged by the same standards courts used in evaluating Jim Crow-era programs that excluded or disadvantaged blacks.
These landmark rulings should have led to the rapid end of racial preferences at American universities. Lower courts, in large part, have adhered to these rulings when they decided racial-preference cases. Nevertheless, many college administrators continue to cling to a distorted interpretation of a fractured Supreme Court decision from 1978. And now, it is time for the high court to eliminate the confusion justified or not over its Bakke decision.
The Supreme Court recently agreed to hear two cases involving the University of Michigan's racially discriminatory admissions programs, affording itself the opportunity to end a quarter-century of debate on the use of racial discrimination to achieve "diversity." Justice Lewis F. Powell agreed with the majority in Bakke that racial quotas and similar plans were unconstitutional in college admissions, but suggested that race might be used as a "plus factor" to distinguish equally qualified applicants and promote intellectual diversity. Four justices agreed with Justice Powell that quotas and other such plans were unconstitutional, and four justices held that colleges could discriminate with racial quotas. But none of the other eight agreed that there was any meaningful distinction between quotas and "plus factors."
Today's college administrators have taken Justice Powell's suggestion to extremes in order to maintain what amounts to a rigid racial spoils system on their campuses. As the research of Stephen and Abigail Thernstrom convincingly demonstrated in their book, "America in Black and White," racial discrimination by preferences is a significant factor at most competitive colleges.
What Justice Powell appeared to suggest that, in his view, colleges could use race to determine which of two students to admit when all other factors were equal is far from what occurs now. Today, many colleges have different admissions procedures for different races and automatically add numerous bonus points for students of "preferred" races. Defenders of preferences in essence admit this when they claim that dramatic changes would occur on campus if racially discriminatory programs were eliminated.
But the changes in states that have eliminated preferences have not matched the shrill predictions. In the first few years after California ended racial preferences, the number of Asian students who had been subject to caps increased at Berkeley, and the number of black and Hispanic students increased at other University of California campuses. These short-term shifts will probably lead to a higher overall graduation rate among minority students who were admitted to institutions that more appropriately suited their level of preparation. Furthermore, all students can be proud that they gained admission based on merit, not quotas.
When the Supreme Court hears the cases from Michigan, it will give no consideration to the empty rhetoric and false arguments that preference advocates normally use to justify their discriminatory programs.
Michigan must establish two legal propositions to prevail: (1) that maintaining predetermined racial quotas on campus in the name of "diversity" is a compelling and, thus, permissible government objective. (Thus far, the Supreme Court has found only the remedying of specific instances of past discrimination sufficiently compelling to justify race-conscious programs.) and (2) that the discriminatory admissions programs at issue are narrowly tailored to achieve that compelling government interest.
Michigan's position clearly fails both tests for a host of reasons among them that its admissions programs arbitrarily favor some minority races and not others. How can it be a compelling government interest to discriminate against Polish immigrants in favor of Spanish descendants?
With the Michigan cases, the Supreme Court can clarify the law and advance the constitutional goal of a colorblind government. The Bush administration should firmly declare its position against racial discrimination by filing an amicus brief in support of merit-based admissions policies and against unfair preferences. The United States helped end the theory of "separate but equal" schools, and it now must make clear its opposition to separate and decidedly unequal admissions programs. Nothing else will do.

Edwin Meese, the 75th attorney general of the United States, is chairman of the Center for Legal and Judicial Studies at The Heritage Foundation (www.heritage.org). Todd Gaziano is the director of the center.



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