- The Washington Times - Wednesday, January 15, 2003

We understand that the Bush administration is now likely to file a brief with the Supreme Court tomorrow, arguing that the University of Michigan's use of racial and ethnic admissions preferences is unconstitutional. Having urged the administration to do just that, we applaud that likely decision. But, as opponents of racial discrimination, we are still watching closely to see what is in that brief.
The administration's brief should make clear not only that University of Michigan's specific program is illegal, but that no school's admissions discriminations can be justified by the "diversity" rationale that is relied on by the University of Michigan and is now commonly used by other schools across the country. The diversity rationale does not claim that racial preferences are justified as a remedial matter (for past specific violations), which is dubious enough. Rather, it asserts that discrimination should be allowed because students will learn so much better if the campus reflects a prefabricated racial and ethnic mix. Such theories of pedagogy (some might call it psychobabble) cannot justify something as divisive and unfair as racial discrimination.
Whether to accept this rationale or not, however, is the fundamental question presented to the Supreme Court in the Michigan cases. If the court avoids this question, and instead narrowly rejects the Michigan program as just a little too ham-handed in its reliance on race, it will leave the door open to other schools to continue using racial and ethnic preferences. And if that happens, then nothing will have been accomplished. Twenty-five years of experience with the Bakke decision shows that, if the door to discrimination is left ajar, then politically correct universities will drive a truck through it. They will adopt quotas, and then lie about it, if they are allowed to discriminate in the name of diversity.
The court will have no difficulty in concluding that Michigan's program is unconstitutional. The justices deserve, however, some assurances from the Bush administration that, if they reject the diversity rationale outright, they will not be the only part of the federal government willing to stand up for the principle of nondiscrimination in university admissions. A brief that does not grasp this nettle or worse, one that resolves it in favor of racial and ethnic preferences will encourage the court to duck the issue, too, or to decide the wrong way. We are confident that President Bush, in light of his past statements on this issue, does not want that to happen.

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