- The Washington Times - Tuesday, January 21, 2003

Last Thursday, the Justice Department, speaking through Solicitor General Theodore Olson and echoing President George W. Bush, upbraided the racially skewed diversity admissions programs of the University of Michigan and Michigan Law school in twin cases pending before the United States Supreme Court, Gratz vs. Bollinger and Grutter vs. Bollinger. Filing as an amicus curiae (or friend of the court), the department saluted reasons for holding the race preferences unconstitutional that would shipwreck all race-based admissions criteria (except where necessary to remedy past racial discrimination).

In other words, President Bush aims at a constitutional revolution in college and university admissions, not simply minor amendments. And if the Supreme Court endorses the Bush revolution, (which seems certain), federal nondiscrimination statutes will probably be construed to prohibit racial preferences by private employers to advance workplace diversity. The high court's ruling would be the beginning of the end of the obtuseness that racial discrimination must be celebrated to get beyond racism.

At issue in Gratz is a 150-point scale employed in admissions to University of Michigan. Applicants from "underrepresented" minority groups, including African-Americans, Hispanics, and Native Americans, receive 20 bonus points for race or ethnicity. In contrast, but 12 points are awarded for a perfect 1,600 SAT, a seemingly bizarre slighting of genius in an admissions program defended as upgrading educational stimulation and achievement.

In Grutter, the Michigan Law school placed its thumb in favor of minority applicants to insure a "critical mass" of minority students. As applied, the phrase was synonymous with a 17 percent quota of African-American, Hispanic, and Native American students in an entering class, a figure corresponding to their percentage of the applicant pool. Racial or ethnic preferences in evaluating applicants were manipulated annually to achieve the haloed percentage.

The department's reasons for decrying both preference programs under the equal protection clause of the 14th Amendment are universally applicable. It declared race-neutral alternatives abound that advance classroom and campus diversity to further educational depth and breadth. Thus, applicants may receive credit for overcoming the handicaps of low-income, broken families, child abuse or neglect, or orphanage. Others may be favored because of political ideology, experience abroad, leadership qualities, or human relations skills. In Texas, California and Florida, diversity is promoted by offering college or university enrollments to the highest-achieving graduates from each in-state high school. These race-neutral alternatives, however, are available to promote diversity on all campuses in the nation. Thus, according to the department's logic, all race or ethnic-based diversity schemes must fall under the equal protection clause. The department underscored the proselytizing of Justice Lewis Powell in Regents, University of California vs. Bakke (1978) that, "

referring members of any one group for no reason other than race or ethnic origin is discrimination for its own sake. [This the Constitution forbids]."

The department also faulted Michigan's racial preferences to achieve diversity (as distinguished from remedial preferences for proven victims of illegal discrimination) for maintaining or enlarging racial and ethnic divisions in perpetuity. The nation's coveted goal of a cultural gospel of colorblindness would be chimerical because racial diversity objectives live in perpetuity. That detraction, however, applies to all diversity programs, not just to Michigan's.

The department further rebuked race and ethnic-based diversity admissions for disregarding individual characteristics informative of educational potential. Thus, it assailed the University of Michigan's uniform 20-point bonus for preferred minorities as ignoring the applicant's "background, academic performance, life experience, or overall contribution to the educational diversity of the student body." Accordingly, the department maintained, preferences are "incompatible with the requirement that all applicants be treated as individuals, not merely as members of a racial group." But the very definition of racial or ethnic preference is group treatment, not individual evaluation. Thus, the department's constitutional critique of Michigan's programs applies to every admissions standard that features racial or ethnic preferences. Each subordinates individuality to group membership.

Although Gratz and Grutter challenge state institutions under the 14th Amendment, the diversity precedents they harbinger would bind every private college or university recipient of federal funds under Title VI of the 1964 Civil Rights Act. The Bakke decision held that the statute and the Constitution are coextensive.

Furthermore, a Supreme Court holding that racial or ethnic preferences under a diversity banner are unconstitutional would cast a legal shadow on scholarship funds reserved for minorities, such as the Bill and Melissa Gates Foundation Millennium Scholarships, both under federal civil rights laws and the Internal Revenue Code's nondiscrimination requirement for tax-exempt institutions. Additionally, the precedent of Steelworkers vs. Weber (1979) approving race or ethnic preferences in the workplace under Title VII of the Civil Rights Act to achieve employment diversity, would be ripe for reversal.

In sum, the sermon of the Bush administration's brief is that government must treat citizens as individuals, not as components of racial or ethnic groups, to honor the Constitution's guarantee of equal protection. It is the boldest challenge ever launched by a president on the indiscriminate favoritism of anointed minority groups since their flowering in 1969. It holds the promise of a race relations shot heard throughout the nation.


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