- The Washington Times - Monday, June 12, 2006

Supreme Court Justice Samuel Alito is unlike his vacillating predecessor Justice Sandra Day O’Connor. Everything in her constitutional universe was opaque. Justice Alito’s philosophy is made of sterner stuff.

The difference will first find dramatic expression in matters of racial discrimination under the Equal Protection Clause of the 14th Amendment. Last week, the high court agreed to review twin conflicting decisions addressing use of race in public elementary and secondary school admissions to achieve racially balanced student bodies: Parents Involved In Community Schools v. Seattle School District, No. 1; and, Meredith v. Jefferson County Public Schools.

Justice O’Connor, writing for a thin 5-4 majority in Grutter v. Bollinger (2003), upheld racial preferences in selecting applicants for admission to public universities. She rhapsodized over educational, economic and sociological wonders allegedly derived from racially diverse campuses. Whites better understand blacks and vice versa. Racial stereotypes are dispelled. Classroom discussion is enriched and enlightened. Student achievement climbs. Students are better prepared to prosper in an increasingly diverse work force and society. And, success in a global marketplace requires exposure to widely diverse people, cultures, ideas and viewpoints. (But after 25 years, Justice O’Connor opined, progress in race relations will have superceded the contemporary justifications for diversity and make their constitutionality highly dubious).

With Justice Alito having replaced Justice O’Connor, the court granted review of Seattle School District and Meredith either to overrule or to sharply confine Grutter. Justice O’Connor was largely an echo chamber for the media and academic elite. Accordingly, she advanced unconvincing reasons sustaining racial preferences to avert their tart criticism. If racial diversity yielded the fabulous nontrivial educational, economic and sociological benefits Justice O’Connor celebrated, parents and students would be demanding the Michigan Law School admissions policy blessed in Grutter be aped everywhere. Employers would similarly place a premium on their graduates, and ask applicants to disclose the racial compositions of the schools they attended. Students from racially balanced schools would be overrepresented among recipients of educational, business, community or international honors. They would be more vocal than others in preaching against racial discrimination. And they would be clearly superior to their counterparts who graduated before initiation of racial preferences.

Yet none of these expectancies has been substantiated by ocular evidence. The University of Chicago Law School, for example, eschews racial preferences without any apparent handicap to its graduates in any respect, including racial attitudes.

Justice Alito, in contrast to Justice O’Connor, has been immersed in the philosophy that racial distinctions are inherently odious. As Justice Antonin Scalia elaborated in Adarand Constructors v. Pena (1995), in the eyes of the government there is only one race. It is American. Thus, the Supreme Court held in Anderson v. Martin (1964) that identifying the race of a candidate on ballots violated the Equal Protection Clause by encouraging racial bloc voting and the subordination of merit to skin color. Justice Alito will be inclined to overrule Grutter because it sanctions a two-track government admissions policy pivoting on race, simpliciter.

The Seattle School District litigation underscores Grutter’s vulnerability. In 2001-2002, the School District employed race in high school student assignments to avoid racial concentration on any campus. Reminiscent of Justice O’Connor, the district explained: “Diversity in the classroom increases the likelihood that students will discuss racial or ethnic issues and be more likely to socialize with people of different races. Diversity is thus a valuable resource for teaching students to become citizens in a multiracial/multi-ethnic world.” The district added that diversity enhances education and racial and cultural understanding. But it abandoned race in school assignments during the Seattle School District litigation. A colorblind standard has prevailed for the last four school terms with no evidence that educational achievement or race relations have suffered.

The nation’s history of racial discrimination is admittedly ugly. Slavery was enshrined in the Constitution. Jim Crow succeeded Reconstruction. The “separate but equal” doctrine of Plessy v. Ferguson defiled the 14th Amendment. Blacks risked and gave that last full measure of devotion in World Wars I and II in defense of freedom while fighting in segregated ranks and subjected to racial discrimination at home. The South’s “massive resistance” to Brown v. Board of Education segued into Bull Connor’s dogs and Jim Clark’s cattle prods to foil black voter registration.

This history and much more teaches that racial distinctions championed by government are convulsive. They war with the objective of a colorblind society by sending a message that individuals should be sorted by race.

The way to get beyond racism is by prohibition — including the overruling of Grutter — not by winking at its practice for 25 years in the fatuous belief that racial preferences then will be voluntarily surrendered.

Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein & Associates and the Lichfield Group.

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