A. Supreme Court Issues Michigan Rulings June 23, 2003

Supreme Court Approves Racial Quotas 06-23-03

In Memoriam
Fourteenth Amendment - June 23, 2003

          In a weak and fractured decision today, the U.S. Supreme Court ruled that racial quotas may continue at the University of Michigan and, by extension, at all other colleges and universities in states which have not specifically outlawed such quotas.

          On June 23, 2003 the Supremes outlawed the explicit racial point system in Michigan's undergraduate admissions, but they supported the law school's use of race to grant advantage to some skin colors and disadvantage to other skin colors. Recent
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See Also: Michigan Civil Rights Initiative, announced 7/8/03

          Justices Scalia and Thomas wrote in their dissenting opinion against racial preferences in the Michigan law school case (Grutter v. Bollinger):

"...the University of Michigan Law School's mystical 'critical mass' justification for its discrimination by race challenges even the most gullible mind.  The admissions statistics show it to be a sham to cover a scheme of racially proportionate admissions." (Emphasis added.)

          Justice Sandra Day O'Connor wrote the muddled majority opinion (5-4) endorsing the law school's use of racially discriminatory preferences.  O'Connor has waffled many times during her tenure on the high court, but this one is a doozy.  For example, in 1989 O'Connor wrote the following words in support of fair and equal treatment under the law regardless of race and clearly opposed to quotas:

"The dream of a Nation of equal citizens in a society where race is irrelevant to personal opportunity and achievement would be lost in a mosaic of shifting preferences based on inherently unmeasurable claims of past wrongs." -- Sandra Day O'Connor 1989

Download the high court's decisions in these two related cases (Adobe Acrobat PDF Format):

Grutter v. Bollinger (law school may continue quotas) (Opens New Window)

Gratz v. Bollinger (undergrad school may continue quotas as long as they don't give 20 point preference to minorities) (Opens New Window)

Early News and Reactions

Supreme Court Justice Scalia's Dissenting Opinion in Grutter v. Bollinger (the law school case) 6-23-03:

JUSTICE SCALIA, with whom JUSTICE THOMAS joins, concurring in part and dissenting in part.

          [Scalia] I join the opinion of THE CHIEF JUSTICE. As he demonstrates, the University of Michigan Law School s mystical critical mass justification for its discrimination by race challenges even the most gullible mind. The admissions statistics show it to be a sham to cover a scheme of racially proportionate admissions. Story
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          I also join Parts I through VII of JUSTICE THOMAS s opinion. * I find particularly unanswerable his central point: that the allegedly compelling state interest at issue here is not the incremental educational benefit that emanates from the fabled critical mass of minority students, but rather Michigan s interest in maintaining a prestige law school whose normal admissions standards disproportionately exclude blacks and other minorities.

          If that is a compelling state interest, everything is. I add the following: The educational benefit that the University of Michigan seeks to achieve by racial discrimination consists, according to the Court, of cross-racial understanding, ante, at 18, and better preparation of  students for an increasingly diverse workforce and society, ibid . , all of which is necessary not only for work, but also for good citizenship, ante , at 19.

          This is not, of course, an educational benefit on which students will be graded on their Law School transcript (Works and Plays Well with Others: B+ ) or tested by the bar examiners (Q: Describe in 500 words or less your cross-racial understanding) . For it is a lesson of life rather than law essentially the same lesson taught to ( or rather learned by, for it cannot be taught in the usual sense) ) people three feet shorter and twenty years younger than the full-grown adults at the University of Michigan Law School, in institutions ranging from Boy Scout troops to public-school kindergartens. If properly considered an educational benefit at all, it is surely not one that is either uniquely relevant to law school or uniquely teach- able in a formal educational setting. . And therefore: If it is appropriate for the University of Michigan Law School to use racial discrimination for the purpose of putting together a critical mass that will convey generic lessons in socialization and good citizenship, surely it is no less appropriate indeed, particularly appropriate for the civil service system of the State of Michigan to do so. There, also, those exposed to critical masses of certain races will presumably become better Americans, better Michiganders, better civil servants. And surely private employers cannot be criticized indeed, should be praised if they also teach good citizenship to their adult employees through a patriotic, all-American system of racial discrimination in hiring.

          The nonminority individuals who are deprived of a legal education, a civil service job, or any job at all by reason of their skin color will surely understand. Unlike a clear constitutional holding that racial preferences in state educational institutions are impermissible, or even a clear anticonstitutional holding that racial preferences in state educational institutions are OK, today's Grutter-Gratz split double header seems perversely designed to prolong the controversy and the litigation. Some future lawsuits will presumably focus on whether the discriminatory scheme in question contains enough evaluation of the applicant as an individual, ante , at 24, and sufficiently avoids separate admissions tracks ante , at 22, to fall under Grutter rather than Gratz . Some will focus on whether a university has gone beyond the bounds of a good faith effort and has so zealously pursued its critical mass as to make it an unconstitutional de facto quota system, rather than merely a permissible goal. Ante , at 23 ( quoting Sheet Metal Workers v. EEOC , 478 U. S 421, 495 ( 1986) (O CONNOR, J. , concurring in part and dissenting in part) ) . Other lawsuits may focus on whether, in the particular setting at issue, any educa- tional benefits flow from racial diversity. ( That issue was not contested in Grutter ; and while the opinion accords a degree of deference to a university s academic decisions, ante , at 16, deference does not imply abandonment or abdication of judicial review, Miller-El v. Cockrell , 537 U. S. 322, 340 ( 2003) . ) Still other suits may challenge the bona fides of the institution s expressed commitment to the educational benefits of diversity that immunize the discriminatory scheme in Grutter.

          (Tempting targets, one would suppose, will be those universities that talk the talk of multiculturalism and racial diversity in the courts but walk the walk of tribalism and racial segregation on their campuses through minority-only student organizations, separate minority housing opportunities, separate minority student centers, even separate minority-only graduation ceremonies.)

          And still other suits may claim that the institution s racial preferences have gone below or above the mystical Grutter-approved critical mass. Finally, litigation can be expected on behalf of minority groups intentionally short changed in the institution s composition of its generic minority critical mass. I do not look forward to any of these cases. The Constitution proscribes government discrimination on the basis of race, and state-provided education is no exception.

Download the entire Supreme Court opinion in Grutter v. Bollinger (law school may continue quotas) (Opens New Window)

CA: State Finds Itself Hemmed In

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"California, among the most ethnically diverse states in the nation and long a bellwether on affirmative action, now finds itself with fewer options for diversifying its public universities than nearly all other states.

The predicament stems from Proposition 209, the 1996 ballot initiative that banned racial and ethnic preferences in state institutions. The U.S. Supreme Court decisions Monday affirming limited consideration

of race in college admissions do not directly apply here. Some legislators and advocates on both sides of the affirmative action debate say they expect the rulings to prompt reexamination, and perhaps changes, in the interpretation or application of the initiative. Some foresee an effort at repeal, which would require another ballot measure. Opponents of affirmative action seized on the rulings immediately in arguments against the ban. Hours after the rulings, some Democratic legislators vowed to push the University of California system to adopt new policies to boost minority enrollment — or to face their imposition by lawmakers. Fabian Nunez (D-Los Angeles), the Assembly's majority whip, said he favors returning race as a consideration in the admissions process at state schools and will raise the issue at the next meeting of the Latino Caucus, an influential legislative group. "Race ought to be considered.... The makeup of our university system, in the undergraduate, graduate and professional schools, ought to look like California.... In public institutions, we have a fiduciary responsibility to see in this democracy our tax dollars are working for everybody." Some constitutional scholars doubted, however, whether UC has the flexibility under Proposition 209 to go beyond current policies. Maria Blanco, national senior counsel for the Mexican American Legal Defense and Educational Fund, said her organization and its allies might push to narrow the reach of Proposition 209. "There may be legislative efforts to say, 'Look, the court upheld' " the acceptability of considering race, " 'so California should be able to do the same thing.' " Blanco added that Monday's ruling "definitely has made people feel that Proposition 209 is out of step with the rest of the country." Even Ward Connerly, a UC regent and leader in the battle in the '90s to pass Proposition 209, said that the Supreme Court ruling would probably encourage opponents of the measure to push for a repeal and, in the meantime, to seek ways to elude its restrictions. "This probably does embolden members of the Latino Caucus, for example, to say: 'The court finds no problem with the use of race — now go ahead and do it.' " Connerly said, however, that a repeal effort "would be foolish.

While the court is saying you may consider race without violating the Constitution, that is not the same as asking, 'Do you want to do it?' I think the people of California are just as resolved now as ever" that they don't want to repeal Proposition 209. Sen. Rico Oller (R-San Andreas) said any legislators who push to restore affirmative action "will find themselves in dire political straits," because a majority of Californians backed Proposition 209. UC spokesman Michael Reese said the system "would welcome legislative action on this to give us the kind of clarity we need." He said UC needs to respect the will of the voters, while striving for diversity. He suggested that UC's competitiveness could suffer if it is unable to take race or ethnicity into account. ... "The real obstacle in California is Proposition 209," said Erwin Chemerinsky, a professor of constitutional law at USC and a supporter of affirmative action. "Hopefully, over time, as California sees the benefits of affirmative action in other parts of the country, it might lead to a repeal or at least a modification.""

Ruling Provides Relief, but Less Than Hoped

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"The relief on college campuses yesterday was palpable, yet far from complete. As university presidents and administrators studied the Supreme Court's decisions to allow affirmative action in principle, if not always as practiced, many said the rulings afforded them more discretion than expected, though somewhat less than they had hoped for. Of primary importance, they contend, is that the rulings affirm their right to assemble a diverse student body, weighing race as one of many factors in admissions. "The courts have recognized that racial inequality still disfigures our democracy and that higher education can and should play a crucial role in closing the opportunity gap," said Carol Geary Schneider, president of the Association of American Colleges and Universities, which represents about 850 campuses nationwide. "For that, we are pleased." The court's defense of affirmative action was definitive enough that the University of Texas said it would resume practicing it, years after a lower court required it to stop. The new policy will abide by a Texas law guaranteeing admission to the top 10 percent of each high school class in the state but will also disregard the ban on affirmative action imposed by a federal appeals court in 1996, known as the Hopwood decision. "The court's ruling sweeps away the Hopwood decision and places the State of Texas on the same basis as educational institutions elsewhere in the United States," said Larry R. Faulkner, the university's president. "We are very pleased." But the court's prohibition of a point system that grants minority applicants a numerical advantage over others promised to wreak havoc on some admissions policies, particularly at large public universities, where applications flood in by the thousands and a tool for paring them down is often needed. Even if a point system is scrapped in favor of something less reminiscent of quotas and more constitutional in the court's eyes, some admissions officers expect that their minority representation will decrease, perhaps slightly, perhaps more. "Could I achieve the same diversity? No, and I don't know anyone at the large publics who is saying they can," said Mabel G. Freeman, assistant vice president for undergraduate admissions at Ohio State University, where the representation of minority students is less than in the national population, even using a point system. "I think what we keep asking ourselves is, what will be better approaches?" ... Before the rulings, when the banning of racial considerations still seemed a possibility, colleges debated how far to test legal boundaries in their effort to maintain diverse campuses. If not race, then perhaps other, more subtle options would remain open, like considering an applicant's history of overcoming obstacles, attending inferior schools or living in a dangerous urban environment. Even if constitutional, such considerations would surely have invited legal challenges from affirmative action opponents condemning them as mere proxies for race. "They would have been the equivalent of cheating," said Lee C. Bollinger, who was president of Michigan when the cases were filed and is now president of Columbia University. So when the court ruled that universities could consider race as long as they engaged "in a highly individualized, holistic review" of all applicants, most college officials said they were already doing what the justices required. This is especially true of smaller private institutions, where the applications are few enough that admissions officers can weigh "every dimension of what a human being is," Ruth J. Simmons, the president of Brown University, said. Michigan says it has enough admissions officers to do away with the point system and still weigh each application fairly. For those that do not, one way of complying with the ruling may be to hire more to vet applicants. "You're going to see a big increase in the number of readers at state universities," said Seppy Basili, a lawyer for Kaplan Inc., a test preparation company. ... College officials argue, however, that there is little reason to think that a race-conscious path to diversity will become obsolete anytime soon. "Everybody would welcome the day in which race had no meaning in America, but we're not there yet," said Lawrence S. Bacow, the president of Tufts University. "We've made progress over the years and will continue to do so. But I can't say whether that will take 10 years, 15 or 50.""

Ann Arbor, Michigan: Diversity Still Crucial Issue at University, Students Say

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"On the steps of the Michigan student union, in the heart of the campus where the affirmative action cases began, students declared the Supreme Court decisions a victory this afternoon. No matter the nuances of the decisions, students said they viewed the outcome as a victory for the University of Michigan's goal of diversity. "It's the principle of affirmative action that we really care about," said Rahul Saksena, a senior who worked with Students Supporting Affirmative Action, one of several groups that emerged in response to the challenges to the school's policies. "We're confident that the administration will find a way to handle the part they need to change." While there were students disappointed by the decision, they were far quieter. But many people have left Ann Arbor for the year, and the spring half-term of classes ended just last week. Along State Street near campus, several students said they disagreed with the manner with which race is considered in admissions at the university and were disenchanted by the ruling, but that they were reluctant to say so because they felt uncomfortable disagreeing with what they viewed as a widely accepted political position on campus. ... John Adams, who just finished law school here, interpreted the court's ruling this way: "You can use race, but don't be too obvious about it." In the halls of the Michigan Union, some students wondered whether an individualized approach was practical. How, asked Jeremy Fields, a medical student, could admissions officers consider tens of thousands of undergraduate applicants on an "individualized" basis? Getting rid of the number system, he said, sounded unlikely. "I think what you'll end up seeing is it'll be a de facto point system — and they'll just say they're aren't points." Ruben Duran, the editor in chief of the Michigan Review, a student-run conservative publication, said he feared the new undergraduate system, whatever it is, will wind up being "even less transparent." Mr. Duran, a senior who said he is opposed to affirmative action, called the court action "pretty muddled." But Concepcion Escobar, who graduated from the law school here last month and was studying for the bar exam this afternoon, said she believed the ruling was perfectly clear. "This has consecrated diversity in the law books," Ms. Escobar, 31, said. "The policy is safer now." ... Clair Morrissey, a senior, said she now wants to push for new ways to keep minority students at the school once they are admitted. Neal Lyons, who is starting his fifth year here, said he wanted to encourage more integration and diversity elsewhere, such as in the nation's grade schools. "This reinvigorated us," Mr. Lyons said. "It's not good that affirmative action was attacked, but in every challenge, there's also an opportunity.""

Michigan Ruling May Mean More Work for Colleges

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"It may not be the most detailed road map ever drawn, but university officials say the U.S. Supreme Court's ruling on race-based admissions at the University of Michigan gives them the best legal guidance yet about drives toward classroom diversity. But it's hard to say just how much impact the court's ruling Monday will have on U.S. colleges and universities. Many schools make extra efforts to recruit minority students or offer them more financial aid, and experts said those programs would have to be reviewed in light of the Supreme Court's decision. ``The Supreme Court has handed the advocates of diversity a significant victory,'' said Barmak Nassirian, associate executive director of the American Association of Collegiate Registrars and Admissions Officers. ``But it hasn't given them a safe harbor. It has not defined to them 'If only you do these one or two or 10 things, you're safe from additional nuisance lawsuits'.'' ... But the law school's system was based on a method used by Harvard University and other private colleges, which usually deal with a small number of applicants. The University of Michigan, which gets 25,000 applications a year for 5,000 slots in its freshman class. Point systems like Michigan's had been the easiest way to handle thousands of applications, and had also gave applicants a clear idea of what standards they needed to meet to win admission. Nassirian said most schools had already been moving away from simply rating students by test scores or high-school grades because they were not reliable measures of talent. Sheldon Steinbach, general counsel for the American Council on Education, a group of 1,800 universities, said there were few schools similar to Michigan that had not already made such changes. ``Many selective institutions have seen the handwriting on the wall and have altered their admissions process ... in order to accord all applicants a full-file read,'' he told Reuters. ... John Challenger, of Chicago-based job outplacement firm Challenger, Gray & Christmas, said the rulings could steer corporations away from anything resembling a quota system in pursuit of creating a more diverse workplace. ``It seems to me that it sets guidelines for hiring in our society,'' he said. In the hiring process, companies will now be more focused on ``looking at the whole candidate and not reducing him or her to some numbers or to something that's analyzable at a quick glance.''"

Angry Groups Seeking a Justice Against Affirmative Action

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"The Supreme Court rulings on the University of Michigan admission policies set off a wave of consternation among conservative groups today. As a result, several officials of the groups plan to demand that President Bush choose someone whose opposition to affirmative action is beyond doubt for a vacancy on the court. Several conservatives and a senior White House adviser said the person who stood to lose the most from any energized campaign on the right to seek an opponent of affirmative action would be Alberto R. Gonzales, the White House counsel who is frequently mentioned as a likely choice to fill any court vacancy. Although Mr. Gonzales has said very little publicly about his position, he is widely viewed by conservatives as heretical on the issue and the person most responsible for blocking the White House from submitting a more hard-line brief to the court on the Michigan cases. "This is a very political decision, and the administration's brief played a crucial role, I believe, in influencing Justice O'Connor, who turned out to be the swing vote," Linda Chavez, president of the Center for Equal Opportunity, said. Her group was among those challenging the Michigan programs. "On a political level, this does highlight the importance of the appointment process, and I can tell you there are a lot of conservatives who believe there was one person who was the most influential person in this administration," Ms. Chavez said. "That person was Alberto Gonzales, and it seemed he was really the key player in arguing for a down-the-middle compromise position before the court." ... "It's outrageous that the majority in favor of these racial preferences was formed by Republican appointees," said Clint Bolick, vice president of the Institute for Justice, another conservative group that challenged the Michigan programs. "Conservatives will want to make sure that anyone appointed to the court in this administration is a strong and sure opponent of racial preferences," Mr. Bolick said, adding that many do not believe that Mr. Gonzales fits that description.

... William Kristol, editor of The Weekly Standard who worked in the White House during the first Bush administration, said that while he was dismayed that President Bush had embraced diversity as a virtue, he believes that it demonstrates the general acceptability of that view among elected politicians. "It shows that the president must believe it's a wise political position," Mr. Kristol said. "Among elected officials, the notion of diversity is very nearly a sacred cow these days." ... The public is generally amenable to the concept of affirmative action, polls show, but less supportive when the programs more closely resemble flat-out quotas. A New York Times/CBS News poll in January found that 53 percent of those surveyed favored programs that "make special efforts to help minorities get ahead" to compensate for past

Companies See Court Ruling as Support for Diversity

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"The Supreme Court's rulings yesterday about diversity in higher education sent a strong signal to the nation's employers that they can continue to use race as a factor in hiring, corporate executives and employment law experts said. In ruling on the admissions policies of the University of Michigan Law School, the court's majority opinion, written by Justice Sandra Day O'Connor, cited the views put forward by General Motors and other companies in friend-of-the-court briefs that said achieving diversity was essential at universities and in workplaces to compete in an increasingly global marketplace. "The particular rationale she argued for was the needs of the globalization of business," said Bill Lann Lee, former director of the Justice Department's civil rights division. "She wrote about the practical benefits of diversity.

She wrote that there is a business justification for diversity." Businesses seeking to achieve diversity can breathe a sigh of relief, said Lawrence Z. Lorber, a former Labor Department official and a lawyer with the Washington office of Proskauer Rose. In upholding the law school plan, Mr. Lorber said, "they effectively upheld employers' affirmative action plans." James P. Hackett, chief executive officer of Steelcase, an office furniture company that helped spearhead a series of friend-of-the-court briefs signed by 65 corporations backing the university position, said the ruling would further a trend already taking place in corporate America. "This was less about affirmative action or quotas than about the university leadership having the ability to ensure diversity," Mr. Hackett said. "For me that's the strong connection to business.
It's something that business has been highly committed to for at least the last decade and has made tremendous strides in improving. The belief in diversity is not something that is argued anymore in business.  It's a factor of being in business."

The court's decision reduced any uncertainty about what steps companies could take in hiring more women and minority employees, several legal experts said."

WSJ Editorial: Supreme Court Quotas

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"Anyone looking for legal, much less moral, clarity from yesterday's Supreme Court rulings on race-based admissions at the University of Michigan was surely disappointed. What we got instead was another look at Justice Sandra Day O'Connor's split-the-baby jurisprudence, and another generation of polarizing race-based public policy. In Gratz v. Bollinger, the court struck down, 6-3, the crude point system used in undergraduate admissions at Michigan, whereby being black carried more weight than a perfect SAT score. But in Grutter v. Bollinger, the more significant companion ruling written by Justice O'Connor, by a 5-4 vote the court upheld racial discrimination in Michigan's law school recruitment. ... Justice O'Connor has been on the fence for years on racial preferences, voting against them on such matters as government contracting. So in Grutter she strives to explain why education is special. Her reasons include nothing quantifiable, but come down to such things as "cross-racial understanding" and the desire to "cultivate a set of leaders with legitimacy in the eyes of the citizenry." And you probably thought the goal of Michigan Law School was a legal education.

In his notable dissent, Justice Clarence Thomas cuts to shreds this insulting notion of a constitutional justification for universities using otherwise unqualified racial minorities to enrich the learning experience of whites. ... Justice O'Connor was long ago identified as the swing vote on the Michigan cases. She has always been an intensely political judge who takes cues from the opinion polls, the political establishment and the press, in addition to the law. So her confusing
split decision was probably guaranteed once the Bush Administration filed its own muddled brief in the Michigan cases. If the White House was unwilling to assert unequivocally that racial discrimination is wrong, even when practiced in the service of the best intentions, there was very little chance that Justice O'Connor would wander out on that politically unpopular limb by herself. A White House statement unpersuasively spun yesterday's decision as a victory. But in one sense it is the first Supreme Court decision issued by White House Counsel Alberto Gonzales, who is widely believed to be President Bush's choice for the High Court when the next Justice retires. Mr. Gonzales helped to overrule those at the Justice Department who understood how Justice O'Connor would interpret their brief's legal ambivalence.

The one silver lining in yesterday's Grutter opinion is Justice O'Connor's own lack of confidence in it. She admits that race-based policies are so constitutionally suspect that they must be "time-limited" and predicts that they will be gone at Michigan in 25 years. Alas, that is probably also what Justice Powell thought when he wrote Bakke, precisely 25 years ago."

Houston Chronicles Editorial: The value of workplace diversity now widely recognized

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"The Supreme Court's rulings on University of Michigan affirmative action cases might have helped to clarify the letter of the law. As a matter of social justice, however, the cases prove that the issues are not so much black and white as shades of controversial gray. Monday's two-pronged decision was in some ways an upholding of the 1978 Bakke case (in which the high court struck down racial quotas but allowed race to be considered as a factor in university admissions) and a rejection of the immediate challenge to that long-established precedent. But it also more narrowly defined the ways "affirmative action" is deemed constitutionally acceptable. The broader residual argument, however, is about the value of diversity and the undesirability of homogeneity. A goal the Michigan case served to highlight to an unprecedented degree. The level of support from corporate America, past and present military leaders and others who filed "friend of the court" briefs in favor of the effort to provide equal opportunity across the board is notable."

Paul Craig Roberts: Those Michigan Affirmative Action Decisions: Equal Protection For Whites Endangered

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" ... Prior to the Grutter ruling, for race to be a factor the program had to pass the strict scrutiny test. Strict scrutiny requires a “reasonably precise time limit on the Law School’s use of race in admissions.”

However, the Michigan program has no time limit. Grutter permits race to be used on a permanent basis. Thus, strict scrutiny is subverted. The Law School argued that diversity requires a “critical mass.” The dissenting opinion notes that the concept of critical mass is a device to make race “an automatic factor in most instances and to achieve numerical goals indistinguishable from quotas.” “Stripped of its critical mass veil,” Rehnquist writes, “the Law School’s program is revealed as a naked effort to achieve racial balancing.” A reasonable conclusion from these two rulings is that a majority on the present Supreme Court believes, in the words of Ginsburg and Souter, that “centuries of law-sanctioned inequality” produced racial inequalities that require reverse discrimination in order to rectify. This Court majority, however, is not
(yet) willing to exclude white people from equal protection. Therefore, quotas must be subjectively managed as diversity and must not openly convey a group privilege based on race. It remains to be seen whether the system of disguised and unacknowledged quotas will over time destroy equal protection for whites, or whether a more radical Court in the future will acknowledge the de facto preferences and render them to preferred minorities (perhaps by then a majority) under the doctrine of adverse possession (squatters’ rights)."

Bill Murchison: Mr. Justice Thomas and matters of principle

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"It's all a matter of tailoring, see? -- wide vs. narrow, as in lapels. Narrow is the rage this season at the U.S. Supreme Court. A "narrowly tailored" admissions plan for boosting minority enrollment at the University of Michigan Law School? A 5-4 majority of justices beamed. Such a plan advances "a compelling interest in obtaining the educational benefits that flow from a diverse student body." Ah, but what about a plan that awards minority applicants 20 resume-padding points when they apply for undergraduate work at the same institution? The justices scowled. No, never! the 6-3 majority said. Too wide, too spacious, not enough restraint in the tailoring. Out went the plan. What? You can't quite make out the principle from which the court was working? That is because none of us, with high-powered microscope or bottle-thick
spectacles, can see what isn't there. When it comes to affirmative action, the high court won't say yes, and it won't say no; it won't say stop, and it won't say go. The principle is to have no principle. This is odd, because the 14th Amendment to the Constitution supposedly sets out with some certitude the principle that all citizens shall enjoy the equal protection of the laws."

Peter Kirsanow: The Abominable Snow Job

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"History teaches that bad Supreme Court decisions are rarely just wrong, that is to say, they are not simply legally incorrect or poorly reasoned. Bad Supreme Court decisions usually suffer from multiple infirmities: Some are morally repugnant (Dred Scott), some usurp the prerogatives of the legislature and manufacture rights out of whole cloth (Roe), and others are a naked exercise in political and social expediency (Plessy). Make no mistake: The dual opinions in the Michigan preference cases (Grutter v. Bollinger and Gratz v. Bollinger) are not on the same practical or moral plane as Dred Scott, Roe, or Plessy.

Obviously, the consequences flowing from the Michigan cases are nowhere near as profound. But, the Michigan opinions nevertheless impress for the sheer banality of the tortuous reasoning used to convert the plain, unambiguous language of the Fourteenth Amendment into a license to discriminate...provided it is done artfully. ... The Court's holding that student-body diversity is a compelling state interest is not only a rank perversion of the Fourteenth Amendment but is wholly inconsistent with the strict-scrutiny analysis employed by the Court in the past. The Court has previously rejected amorphous concepts such as "societal discrimination" as qualifying as a compelling governmental interest. Only remediation of past discrimination, national security, and perhaps "social emergencies rising to the level of imminent danger to life and limb" qualify. But the Grutter majority accepts at face value the fuzzy rationale that student diversity is a compelling state interest because a "critical mass" or "meaningful numbers" of minority students "break down barriers" and produce "more spirited discussions." Aside from the fact that this rationale has been, if not debunked, rendered highly suspect by studies by the National Association of Scholars and Professors Rothman, Lipset, and Nevitte among others, it hardly justifies corrupting the clear language of the Fourteenth Amendment that "no state...shall deny any person within its jurisdiction the equal protection of the law." ... Optimists will say that the good news is that preferences must now be more narrowly tailored and that perhaps the end is in sight; but a Court that can uphold a program that only Lewis G. Carroll could appreciate is not cause for optimism, for racial preferences have now vitiated the equal-protection guarantee of the Constitution and they will not go away for a long time to come.

Everyone wants a society where individuals from every ethnic and racial group have an equal opportunity to achieve their respective dreams. Yet the closer we get to being such a society, the more we seem to count by race."

Deroy Murdock: Michigan Muddle

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"The U.S. Supreme Court attempted a Solomonic compromise in the University of Michigan cases on Monday. By embracing the law school's diversity-driven admissions practices but rejecting those of the undergraduate school, the Court has offered a muddle rather than the lucid guidance this crucial issue demands. Its message seems to be that government schools may to continue to practice racism by focusing on the pigmentation of school applicants — but not too much. Advocates of racial equality should celebrate the Court's rejection of the automatic, 20-point advantage given to some (but not all) of Michigan's undergraduate minority applicants regardless of their circumstances.

However, we must remain vigilant against two new areas of mischief this decision has established: First, the Court's ruling that diversity constitutes a compelling state interest suggests that racial preference schemes need not be employed as necessary evils to correct past discrimination. In the name of burying Jim Crow or combating some similar, modern-day ill, one could argue for such measures. However, this newly enshrined diversity standard means that racial engineering may continue to craft classrooms, and perhaps workplaces, to "look like America," as Bill Clinton once put it. If that involves racial discrimination against whites or non-approved minorities (such as Americans of Chinese, Japanese, Vietnamese, or Cambodian ancestry), the Court seems to find this acceptable. Second, Michigan's law school sought to invite a "critical mass" of minorities to its campus. What's that, enough blacks and Hispanics to help white kids develop a sense of rhythm?

And how many black and brown faces does it take to make that happen? "Critical mass" is a remarkably vague standard that can stretch just widely enough to encompass whatever racial mix a school administrator deems desirable. While a minority student body of five percent might be "critical" enough at the University of Vermont, Penn State may believe that anything less than 20 percent would be insufficiently "critical." Pick a number. Any number. You could argue that that figure defines the threshold between an enlightened, socially just "critical mass" and a cold-hearted, high-speed reassertion of white privilege. Of course, all of this will fuel even more friction among black, white, yellow, and brown Americans. This will generate more litigation and yet another opportunity for the Supreme Court to make up its mind and either conclusively restore equal protection for Americans regardless of ethnicity or thoroughly abandon that principle so we can mourn its loss once and for all and move on. Co-equal to the other branches of government, the judiciary is supposed to lead, if only by giving coherent signals as to the constitutional fitness of legislative and executive behavior. Rather than shine a beacon decisively in one direction or another, the Court has illuminated a disco ball that will send a dizzying pattern of light beams swirling around us in every direction for the foreseeable future."

John McWhorter: The Worst Day in Civil Rights History

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"This is the worst day in civil rights history since the Bakke case in 1978.

First of all, black students do not like being used as pawns of diversity and class. You hear this from black students again and again, that it's a burden to be sought for your views on race in classrooms. I've heard this so often when I've given talks that it gets almost monotonous -- it's a standard opinion. I felt that way, too, when I was a kid.

Second, poll after poll of African-Americans, when you ask them, "Do you agree with admitting black students to higher institutions with lowered standards?" they say no, overwhelmingly. So what we've now seen is that the highest court in the land has ratified a policy that black people do not approve of, especially when really apprised of what makes up that policy. Instead, what we've got is the idea that it's OK to take race into account. Of course, many people think that in saying that, you're adding a little bit of nuance, and it's assumed people will follow that with a certain kind of forbearance. But since 1978 we've seen what actually happens: It gives the leeway to admit black people under the bar, even those who've suffered no particular disadvantage in their lives -- which is the case with most people admitted to higher institutions. Indeed, now it's been said that there can't be quotas, but frankly, that was already old news. The general idea that you can take race into account means that all of these [institutions] can continue admitting black students with lower standards. And they will. So the status quo will continue: Good, smart white people deeply assuming that it's not cool to submit any brown-skinned person, regardless of ability or achievement, to the [high] standards they would submit their own kids to. That's tragic. Not to mention that the people who are mistakenly in favor of this policy are now going to have in their pocket the fact that the Supreme Court has ratified it.

For about 10 years the quota idea has been out of fashion. What the issue has required is finer minds, more judgment, more reflection and a broader view. This is the whole notion of diversity. Diversity is a cute way of saying, "Shall we submit black students to lowered standards?" And now it's, "OK, now you can't have a quota," but that doesn't mean the practice won't continue. Nobody who's seen that practice up close -- and I have spent a lifetime in higher education -- should consider this a good thing. Many of the people making the decisions about this have not seen how it operates close up. It's a hideous policy. I'm saddened by this ruling, and I'm surprised that what we would regard as nine of the most sophisticated legal thinkers in the land could not come out in a majority against a policy that is so full of holes, so unjust, so condescending."

Lowell Ponte: Racist Law School Ruling

Last Known Link:

"“WHEN I’M PRESIDENT, WE’LL HAVE EXECUTIVE ORDERS to overcome any wrong thing the Supreme Court does tomorrow….” Thus spoke Rep. Dick Gephardt (D.-Missouri), former Democratic leader of the House of Representatives, often called one of the Democrats’ most moderate candidates for President in 2004. Gephardt spoke Sunday in Chicago, where he had come to address Project PUSH and the Rainbow Coalition and their leader Rev. Jesse Jackson. Gephardt’s bizarre statement came during a verbal shoving match as he and the eight others contending for his party’s mantle strove to outdo one another in promises to uphold the reverse racism its supporters propagandistically call “Affirmative Action.” Gephardt promised to use Presidential Executive Orders to “overcome” what he expected to be a high court ruling that the University of Michigan’s racial preferences in its admissions policy were unconstitutional. Gephardt promised, in other words, to use presidential authority to circumvent the U.S. Supreme Court in order to maintain racial preferences for key groups that disproportionately vote Democratic. ... If Gephardt and the Democrats are willing to use Executive Orders to circumvent the Supreme Court, why cannot President Bush use more moderate Executive Orders to do likewise? Among the many potential reasonable directives President Bush might issue – and that would have the overwhelming support of a majority of citizens – are these: President Bush could order all agencies and institutions receiving federal funding of any type to cease collection of information regarding the race of any citizen, including job and admissions applicants. The noble Ward Connerly has won overwhelming public support for such race-blind policies in California. The rationale for this Bush directive could be an expanded reading of the Fifteenth Amendment affirmation that voting rights may not be denied or abridged “on account of race, color, or previous condition of servitude.” Likewise, neither race nor color should be used in abridging the equal opportunity to participate in government employment or higher education at government colleges and universities such as the University of Michigan Law School. President Bush could order an immediate halt to any and all federal funds, contracts or other assistance going to any institution or agency that uses race or color as a factor in hiring or college admissions. President Bush, in an order straight out of William Shakespeare’s “Merchant of Venice,” could declare that racial factors may be used by colleges and employers – but only if they could prove that members of no other racial group suffered discrimination as a result.

The University of Michigan preferences for African-Americans, Hispanics and Native Americans, as this column argued in February 2003, had the inevitable effect of discriminating against other groups – including Asian-Americans, Caucasians, and Jews. It was and remains a racist, anti-Semitic policy endorsed by roughly 40 of America’s most prestigious companies. The paradox such an Executive Order would pose seems insurmountable, but perhaps some clever lawyer can find a legitimate way to favor one race without inherently discriminating against others. If not, then this becomes like Portia declaring that the Merchant of Venice is entitled to his pound of flesh – but only if he can take it without shedding a single drop of blood. “Affirmative Action” may be used, this Executive Order would say, but the Federal Government will sue and shut it down the instant it becomes “Negative Action” against anyone of an unfavored race. President Bush could order that “race,” if used as a factor in employment or admissions, must exclusively refer to a person’s “race” as officially designated by the Federal Government. In other words, if Democrats want to use “race” for preferences, then they must vote for a law requiring each citizen to carry an official “Race I.D.” card – as was done in Apartheid South Africa. We cannot authorize racial preferences and then let each person’s “race” be defined by whim or arbitrary guesswork.

President Bush could order the creation of a Department of Racial Classification, with Cabinet rank, to investigate, determine and define each citizen’s official “race” for purposes of issuing government race I.D. cards. This department will establish criteria for defining race and will require citizens to submit evidence of their “race,” including documentation of family history and DNA samples. Every political advocate of racial preferences ought to be asked to co-sponsor the legislation setting up this Apartheid-like department. Or President Bush could issue an order allowing any citizen to claim (or at any time change to) the racial status he or she prefers – and this order would make it illegal to question or challenge such status. This is in keeping with an article many years ago in National Lampoon Magazine titled “Your Little Known Right to be a Negro.” Schools and employers must publish any racial preference policy they use, and anyone wishing to apply as a member of a preferred race, e.g., to the University of Michigan Law School, will be allowed to do so. It will be a crime for any school or potential employer to use any method (such as requiring photographs, interviews or DNA samples, or use of “redlining” to evaluate what neighborhood a person comes from) to ascertain an applicant’s “true” race. Or President Bush could order the issuance of a Race I.D. card for all citizens in which their preferred race would be noted – but everyone would be legally defined as belonging, “at least 1 percent,” to every “race.” That is, everybody would become legally at least 1 percent Black, Caucasian, Hispanic (not a racial but cultural category, despite University of Michigan Law School discriminatory pretenses), Asian, Native American, Polynesian and Eskimo. This would abolish old and new racist notions by ending the idea that anyone is of “pure” race. Since it would re-categorize everybody as being of “mixed race,” it would make racial preferences absurd. And this is, of course, valid in a species of which scientists have determined that a mere 200,000 years ago we were all Africans. Given a history of migrations and mixing, few humans can trace their ancestry back more than a few generations to “prove” anything…..a fact more clear in America than almost anywhere else. Because of the nightmare history of rape that accompanied slavery, for example, the average African-American today carries the genes not only of the kings and queens of Africa but also of the most aristocratic and racist white slave owners….so why is the University of Michigan giving preference to those carrying these genes of slaveowners? What other Executive Orders might a bold President Bush consider issuing to negate or undo this surprising U.S. Supreme Court ruling? In the spirit of diversity, what are your ideas along these lines?"

Carol M. Swain: Racial Preferences Are Reactionary

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"The victory that affirmative action’s proponents scored in the University of Michigan Law School decision is a loss for our nation and it may well prove to be the death knell for amicable race relations in the future. Most Americans view the U.S. Supreme Court as being the place of last resort for fairness and equity. Poll after poll shows that the overwhelming majority of Americans of all races oppose the use of racial preferences in public policies. By upholding the use of race in law school admissions, the Court has taken the easy way out and it has succumbed to outside pressures bent on maintaining the status quo.

Although our nation has changed dramatically over the past 40 years, what we have cemented in place today is a set of policies, programs, and attitudes about race that were adopted in the 1960s and 1970s when our nation was less diverse and our economy much stronger in terms of job growth and potential for achieving a high standard of living. Our federal, state, and local leaders, including conservatives like Bush and Ashcroft, have repeatedly failed to rise to the occasion and adjust public policies to reflect where we as a nation stand today. ... By the year 2050, some reports indicate that non-Hispanic whites could become a minority in a nation founded by European Americans. Although much speculation focuses on the year 2050, minority status for European Americans could occur much sooner. It could occur earlier
because of the well-known minority undercount of the Census and because of the practice of some racial and ethnic minorities--for example-- Puerto Ricans to identify themselves as white Americans even when their physical characteristics would suggest African American. Not only are racial and ethnic minorities seriously undercounted, but also the percentage of whites in the country is over inflated. As the country grows more and more diverse, the elites in America continue to support the status quo and affirmative action as racial preference shows little signs of abating. Somewhere we have taken a wrong turn on race.

Something is seriously wrong. By vigorously defending racial preferences in the name of diversity and refusing to challenge racial double standards, our national and state leaders have fostered hostilities among and between different racial and ethnic groups. I am staunchly convinced that feelings of anger and resentment among the shrinking white population will only increase as our nation becomes more and more diverse. It is only human nature for people to worry about the future of their children and grandchildren. Let’s wake up and smell the coffee! America’s leadership institutions and its leaders are deeply flawed. Few exercise common sense when it comes to race. What America needs is a set of leaders willing to take us in new and innovative directions. America needs to become one country united by the ethical, moral, and Biblical principles that have helped make us great. What can save America are common principles and common values that include the betterment of all of society, including the poor white male from Appalachian who shares some dreams with those who benefit from racial and ethnic preference. How long can a nation as diverse as America sustain racial and ethnic preferences without fueling increased racial and ethnic conflict? How long can the American people be satisfied with public policies that give advantages to the offspring of new immigrants over the needs of Americans with deep roots in this nation? Where do we go from here? Neither Democrats nor Republicans have offered real leadership on these issues. The Supreme Court has failed America. By not exercising courage, our elected and appointed officials have placed us on a dangerous collision course made even worse by the growth of identity politics."

George Will: The Michigan decision

Last Known Link:

"It was serendipitous. On the eve of the Supreme Court's rulings regarding the University of Michigan's two systems of racial preferences, for undergraduate and law school applicants, the Census Bureau reported that Hispanics have supplanted African-Americans as the nation's largest minority. The rulings effectively say universities can use some sorts of judicially monitored racial preferences forever. But demographic facts say race is rapidly becoming more and more irrational--indeed, unintelligible--as a basis for government actions. Since the court's 1978 Bakke decision, it has been constitutional law that ``diversity" is a ``compelling" reason for institutions of higher education to give some weight in admissions decisions to members of such races as the institutions decide to prefer. Michigan prefers Hispanics, African-Americans and Native Americans. Michigan either does not believe that -- to take just three examples -- Asian-Americans, Arab-Americans and Polish-Americans contribute ``diversity" that is useful to the educational experience of all, or Michigan believes that Asian-Americans, Arab-Americans and Polish-Americans add valuable diversity but can earn admission in sufficient numbers to make preferential treatment unnecessary. If Michigan's belief is the former, it should explain what it means by valuable diversity. If Michigan believes the latter, it believes that the minorities for which it reserves preferential treatment need to be regarded as handicapped, and hence wards of the state, perhaps forever. ... But America's fast-unfolding future will outrun the capacity of litigation to stay pertinent. What are called ``race-conscious" remedies for social problems are going to seem increasingly problematic because race and ethnicity are increasingly understood to be not fixed but extremely fluid, hence dubious, scientific categories.

African-Americans include descendants of African slaves, recent voluntary immigrants from Africa--and from the Caribbean. The single category ``Hispanic" sweeps together such very different groups as Cuban-Americans, Haitian-Americans, Guatemalan-Americans, Salvadoran-Americans, Mexican-Americans. And immigrants from Argentina--but not from Brazil. Rapidly rising rates of intermarriage further the wholesome blurring of the picture of the nation. So does the fact that many Hispanics--and Arab-Americans--chose ``white" or ``other" when asked to pick from among the 63 categories on the 2000 census form.

The increasing arbitrariness and unreality of official racial and ethnic categories will become apparent. After all, 100 years ago, Irish, Italian and Jewish immigrants were considered three different races. Justice Clarence Thomas, who considers both Michigan programs unconstitutional denials of equal protection, quoted an 1865 Frederick Douglass address: ``The American people have always been anxious to know what they shall do with us. ... Do nothing with us! Your doing with us has already played the mischief with us. ... All I ask is, give (the negro) a chance to stand on his own legs. Let him alone!" Perhaps policy will conform to Douglass' vision in another 138 years. Justice O'Connor, writing 25 years after Bakke, says: ``We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.'' Would constitutional law now be different if the court's expectation were less cheerful? Because the interest at issue--diversity--is so unexamined and unexplained, the supposed necessity of preferences is as speculative as is the expectation. Future cases probably will require the court to split and re-split hairs about what the Constitution supposedly says concerning how much weight race can be given by institutions as they engineer ``diversity" to produce asserted, but unmeasureable, benefits. But the future cases will reveal a court increasingly mired in criteria and categories rooted in a vanished America's problems with a binary, black-and-white understanding of its racial composition. In time, the court's role will seem anachronistic; its reasoning and vocabulary will seem quaint.

Demographics, not constitutional litigation, are determining the destiny of a post-racial America."

Download the Supreme Court's 6-23-03 rulings regarding Michigans quotas (Adobe Acrobat PDF Format):

Grutter v. Bollinger (law school may continue quotas) (Opens New Window)

Gratz v. Bollinger (undergrad school may continue quotas as long as they don't give 20 point preference to minorities) (Opens New Window)

  END (A)   Supreme Court Rulings 6-23-03

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