Tuesday, June 29, 2004

As colleges and universities complete their first round of admissions following last year’s affirmative action decisions in the two Michigan cases, it is becoming clear that final victory for either side is proving elusive.

Opponents of race preferences can try to reverse the holding — that the “compelling state need” for diversity trumps Equal Protection considerations — using the cumbersome, politically divisive process of state referendum. Or they can return to the Supreme Court after one or more deaths or retirements have altered its composition. But that is an “iffy” proposition and carries scant rewards as citizens of California, Texas and Florida discovered when forced to abandon affirmative action. The result: a batch of “Percentage Plans” guaranteeing high school students graduating high in their classes admission to top state universities, and other schemes designed to restore the old numbers far less efficiently than under affirmative action.

But the “victors” have their own set of problems. While approving the law school’s practice of accepting enough minority students to form a “critical mass” for purposes of providing diversity of thought in the classroom, the court rejected an automatic 20-point admissions score bonus for minority candidates. It is noteworthy that in changing its undergraduate admissions procedures to comply with the holdings, Michigan shied away from the “critical mass” approach, as have dozens of other academic institutions.

Why? Because it is an artificial contrivance barren of academic justification and laughably irrelevant to most classroom settings. What special personal experiences, for example, does a black American bring to a German language class? Or Biology 101? Or chemical engineering? And even when the subject turns to constitutional law, the U.S. presidency or advanced sociology, are the views of most minorities so different from that of your basic white liberal? And, of course, if diversity were the real objective, all of academia would be in hot pursuit of Mormons, fundamentalist Christians and maybe even Republicans.

Even Justice Ruth Bader Ginsburg, a supporter of race preferences, found the charade objectionable. “If honesty is the best policy,” she wrote, “surely Michigan’s accurately described, fully disclosed college affirmative action program is preferable to achieving similar numbers through winks, nods and disguises.”

The current constitutional muddle is largely the work of a single justice, Sandra Day O’Connor, appointed to the court by President Reagan, who hoped she would follow the same conservative path as her Stanford law school chum, William Rehnquist. Instead Justice O’Connor placed herself as the “swing” vote on a court divided 4-4 in many critical cases between liberals and conservatives. Her resulting tendency to join first one side and then the other has come at the expense of consistent jurisprudence.

In particular, Justice O’Connor presents a history of “zigging” one way on an issue for years, then “zagging” in the other direction at the critical point of the debate. Through most of the 1980s, she raised the hopes of pro-lifers with nimble critiques of the medical and legal flaws of Roe. Yet when the opportunity arose in Webster and Casey to set aside Roe, she embraced the very cause she had long critiqued.

So it was with affirmative action. By the time she joined the court, a majority had collectively sanctioned a revolutionary shift from the “color-blind” approach of Brown and its progeny toward permitting race preferences to diversify both the academic community and, in some instances, the work force. Liberals on the bench were pressing for even broader license, moved less by the Constitution than the ugliness of the original sin.

For years, Justice O’Connor interpreted traditional standards for judging race preferences — strict scrutiny, compelling need, narrow tailoring — in ways that would rule out discrimination in such areas as state and federal contracting, broadcast licensing and the drawing of political district lines. She used terms like “apartheid” in describing such practices and in her Metro Broadcasting dissent declared, “The interest in increasing the diversity of broadcast viewpoints is clearly not a compelling interest. It is too amorphous, too insubstantial.”

To reach the egregious conclusion that Barbra Grutter had to give up her hope of attending Michigan law school to a less academically qualified minority, Justice O’Connor had to walk away from her language in half a dozen cases. Her reasoning calls to mind a thought from “Through the Looking Glass”: The question is never whether one can make words mean many different things. It is, who will be in charge of the words?

But what if Barbra Grutter didn’t have to give up her place to a less qualified minority? What if both could be admitted? Suppose Michigan, under the lash of legislation, executive order or ballot initiative was compelled to enroll one non-minority student for each affirmative action beneficiary? Justice O’Connor’s constitutional mischief would not be wholly erased. But the human damage would be repaired. And in the legal muddle her opinions have produced, that is not a bad result.

Robert Zelnick is a research fellow at the Hoover Institution and is the author of “Swing Dance: Justice O’Connor and the Michigan Muddle.”

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