Tuesday, June 24, 2003

The Supreme Court was at its worst Monday in sustaining the constitutionality of minority preferences in educational admissions. Writing for a thin 5-to-4 majority in Grutter vs. Bollinger (June 23, 2003), Justice Sandra Day O’Connor declared that de facto racial quotas pass constitutional scrutiny if disguised as a quest for a “critical mass” of underrepresented blacks, Hispanics, or Native Americans.

But reminiscent of a surprise O Henry ending, the associate justice surveyed the penumbras and emanations of the 14th Amendment and also ordained that racial or ethnic preferences to promote campus diversity must lapse after 25 years because racial and ethnic utopian gains will have then made them superfluous.

Nonsense on stilts is the most generous characterization of her opinion. It is a prime candidate for overruling if President George W. Bush enjoys an opportunity to fill a vacancy on the high court, just as the racial preference frolic in Metro Broadcasting vs. Federal Communications Commission (1990) authored by Justice William Brennan was soon jettisoned after he retired in Adarand Contractors Inc. vs. Pena (1995).

At issue in Grutter were bonuses awarded to blacks, Hispanics and Native Americans in the admissions policy of the University of Michigan Law School. Other minorities who have suffered comparable historical discrimination in the United States, such as Asian-Americans or Jews, were denied any racial credit.

The origins of the preferences in 1992 speak volumes. The law school was not inspired by fear its academic reputation and the legal training of its students were suffering by the tiny percentage of enrolled minorities. Neither government nor businesses had complained that Michigan Law School graduates were insensitive to the concerns of blacks, Hispanics or Native Americans or were otherwise handicapped in working with minorities. And neither faculty nor students were grieving that classroom exchanges were arid and unedifying because minority voices were generally absent. In sum, the preferences were not born of concern for the educational luster of the law school or the fitness of its graduates for the practice of law.

Instead, political correctness spawned by the 1968 Kerner Commission Report, the assassination of Martin Luther King Jr., and the persistent anemic representation of blacks, Hispanics and Native Americans in education and the professions fathered the law school’s racial and ethnic admissions credits. It admitted their necessity rested on the inability of the favored minorities to earn acceptance under the exacting academic and extracurricular standards applied to other applicants.

Moreover, the law school conceded it kept pressing its admissions thumb behind minorities until their numbers reached a “critical mass” in order to encourage classroom participation and to avoid feelings of isolation. According to Admissions Director Erica Munzel, critical mass, like obscenity, eludes definition; an admissions officer simply knows it when she sees it; and, the critical threshold may either climb or fall depending on the minority under examination.

As Chief Justice William H. Rehnquist underscored in a dissenting opinion, from 1995-2000 the law school admitted between 13 and 19 Native Americans, between 91 and 108 blacks, and between 47 and 56 Hispanics. Critical mass for the latter was thus but half that for blacks, a fraction which slumped to one-sixth for Native Americans. Justice O’Connor shied from explaining why minorities would display varied propensities towards loneliness or a need for bonding.

As Shakespeare might have said, trifles light as air are confirmations strong as proof of holy writ to racial and ethnic preference proponents. Justice O’Connor thus accepted the counterfactual assertions that the gathering on campus of the law school’s preferred and nonpreferred students exploded racial stereotypes, advanced racial understandings and dazzled classrooms with enlightenment and spirit.

Compare Michigan Law School and its preferences with its counterpart in California, the University of California, Berkeley Law School (Boalt Hall), whose preferences ended with the passage of Proposition 209 years ago. Not a peppercorn of evidence even hints that Boalt Hall students are more prejudiced, less appreciative of unique racial histories and experiences or less intellectually stimulated or challenged in the classroom. Nor does evidence demonstrate that after graduation they are less prepared to live or work in a society richly diverse in people, cultures, ideas, and viewpoints than are Michigan Law School graduates. And neither government nor private businesses covet Michigan over California in recruiting students for employment based on the theory that campus exposure to a critical mass of minorities adds unique qualifications unobtainable without racial and ethnic preferences.

Justice O’Connor tacitly acknowledged the bankruptcy of her reasoning, which would subject the nation to racial and ethnic tumult for the ages. She thus insisted that all race-conscious admissions policies must have an end point to conform to the 14th Amendment’s command of a colorblind legal landscape. The justice thus plucked 25 years from the sky, and sermonized that in 2028 preferences that had passed constitutional muster would become taboo.

It was magnificent political compromise, but it wasn’t law. That will require an overruling of Grutter.

Bruce Fein is a founding partner of Fein & Fein.

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