- The Washington Times - Tuesday, May 21, 2002

This judicial coronation of racial and ethnic preferences will not stand. A bitterly divided U.S. 6th Circuit Court of Appeals gave constitutional blessing in Grutter vs. Bollinger (May 14, 2002) to Michigan Law School's blatant discrimination against a white applicant.

Writing for a 5-4 majority, Chief Circuit Judge Boyce F. Martin Jr. euphemistically characterized the racial discrimination as a lofty quest for educational enrichment.

But discrimination by any other name is no less repugnant. And to insist that all are equal before the law, but some are more equal than others, smacks more of George Orwell's "Animal Farm" than the equal protection mandate of the 14th Amendment. The disappointed applicant, Barbara Grutter, is pleading for review by the United States Supreme Court.

Race and ethnicity evoke passions.

Passions pulverize reason.

Judges are no exception, as the ill-conceived Grutter ruling testifies.

Michigan Law School is unstained by past racial or ethnic discrimination. But applying colorblind standards for admissions, i.e., treating all applicants unscarred by past discrimination the same irrespective of race, yielded a student body too monochromatic for the institution's politically correct academics. They craved a Titianlike floral opulence on the campus, driven by the dogma that law schools, no less than President William Clinton's Cabinet, should look more like America. A way must be found, the elite chanted, to raise the representation of African-Americans, Hispanics and Native Americans.

But a formidable obstacle to their high-minded flirtation with race discrimination presented itself: the equal protection clause of the 14th Amendment. The Supreme Court had held that distinctions pivoting on race are odious to a free people; and, that they pass constitutional muster only if strictly necessary to advance an urgent government objective.

Moreover, only one justifying urgency had commanded a Supreme Court majority: namely, offsetting individual handicaps spawned by past discrimination. The law school, however, was sinless on that count; and, it was unsatisfied with giving admissions credits only to applicants who had personally encountered discrimination elsewhere.

Amidst the gloom, a flickering hope was discerned in Justice Lewis Powell's solo opinion in Regents of the University of California vs. Bakke (1978). There he smiled on student diversity that enriches the learning environment as a constitutional justification for boosting the credentials of minority applicants whose experiences and perspectives because of skin color could not be duplicated by whites. Justice Powell, however, elaborated that a race-based preference must be the caboose, not the locomotive, of admissions decisions: "The file of a particular black applicant may be examined for his potential contribution to diversity without the factor of race being decisive when compared, for example, with that of an applicant identified as an Italian-American if the latter is thought to exhibit qualities more likely to promote beneficial educational pluralism."

The fragility of Justice Powell's opinion to exculpate racial and ethnic admissions preferences from equal protection condemnation was twofold: a Supreme Court majority of five is customarily required to pronounce authoritatively on the Constitution, and only biblical stories can multiply 1 into 5; further, no credible evidence supports the proposition that artificially created polychromatic student bodies are educationally superior to institutions like Chicago Law School which embrace colorblind admissions standards. The achievements of the former are not higher whether measured by bar admissions results, professional success, human relations, altruistic service, or prestige among lawyers and judges. Additionally, if the claimed superiority were genuine, then students would flock to schools celebrating racial and ethnic preferences. But that is not the case. The classrooms of Chicago Law School, for example, brim with student and teacher superstars.

The preferences at issue in Grutter are emblematic of the spurious argument of educational richness. They were crafted by the faculty in 1992, but not from fear that the legal education offered at Michigan was lagging behind more racially or ethnically diverse institutions. Furthermore, no jump in educational enrichment or success appeared after inauguration of the preferences. Wasn't political correctness about race and ethnicity the nonscholarly driving force behind the faculty decision?

Justice Powell, whom they employed as their constitutional North Star, cautiously endorsed an acorn of race-based preference comparable to other diversity earmarks. The faculty, however, employed an oak. As dissenting Judge Danny Boggs underscored: "[U]nderrepresented minorities with a high C to low B undergraduate average are admitted at the same rate as majority applicants with an A average with roughly the same LSAT scores. The figures indicate that race is worth more than one full grade point of college average or at least an 11-point and 20-percentile boost on the LSAT."

Chief Judge Martin scoffed at these difficulties. If fishes and loaves can be multiplied in the New Testament, one Justice Powell can be multiplied by federal appellate judges into five to make his solo performance in Bakke a constitutional endorsement of race-based diversity preferences. Judge Martin also accepted that Michigan needed preferential oaks rather than acorns in the admissions process because a merit-based, colorblind standard would slash minority admissions by three-fourths, to 4 percent from 14.5 percent. But no plausible evidence showed that such a plunge would harm the law school's education, the purported justification for the preferences.

Doesn't the reasoning of the Grutter majority insult the cerebral faculties? The Supreme Court will assuredly tell it so.

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