In December 2002 it was a brighter day for civil rights

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[Dec. 2002] Finally the U.S. Supreme Court is about to hear a landmark case on whether or not it is legal or constitutional for the University of Michigan and other schools to use racial quotas and preferences to reserve admissions slots for "persons of color".

Do the Right Thing (12/04/02 Wall Street Journal op ed)

By WARD CONNERLY and EDWARD BLUM

          The Supreme Court has agreed to hear arguments in Grutter v. Bollinger and Gratz v. Bollinger, two related cases that many believe will be the most important civil rights lawsuits in a generation. Their outcomes will determine if Barbara Grutter and Jennifer Gratz, two white women whose grades and test scores should have ensured their acceptance to the University of Michigan law school and undergraduate program respectively, were unfairly rejected because the school gave admission preferences to minority applicants in order to have a "diverse" student body.

          The pivotal issue in Grutter and Gratz -- one that has bedeviled the courts, to say nothing of the havoc wrought on admissions offices and the unfairness caused to millions of college-bound students -- is whether "diversity" is a compelling enough justification to use racial and ethnic classifications and preferences in deciding who will, or won't, be admitted to a university.

          This was the essence of Board of Regents of the University of California v. Bakke, a landmark 1978 Supreme Court case. That case continues to offer only a muddled answer to the question of whether the pursuit of diversity justifies racial and ethnic preferences in school admissions. Courts in Texas and Georgia have concluded from Bakke that a student's race can't be an element to achieve diversity, while courts in Michigan and Washington State have come to the opposite conclusion. Because the federal government is not a party to this lawsuit, it is possible -- although unlikely -- that the Bush administration can simply sit this one out and not offer the court any guidance, a posture perceived by some administration insiders as the most politically expedient course to take. However, saying nothing about a case of this magnitude would be highly unusual and, moreover, would concede the high ground to those who will criticize the president's civil-rights record regardless of what he does here.

          The Right Argument.   The correct legal position the Bush administration should take is one in which they argue that the so-called "diversity rationale" for preferences is constitutionally insufficient to justify discrimination on the basis of skin color or where a student's ancestors came from. Furthermore, they should contend that achieving skin-color diversity assumes that all racial minorities are simply interchangeable with one another: Any black student in a college class will bring a "black" perspective to the discussion and the learning experience: it doesn't matter if he or she attended an impoverished inner-city high school or a chic prep school, black or brown skin creates diversity.

          The Wrong Argument.   If the Bush administration casts its lot with the U. of M., it will argue that the rewards of "diversity" -- or, in reality, a student body that is proportionate to the nation's racial and ethnic populations -- is so beneficial to everyone, that admitting or rejecting students because of skin color is permissible. The university claims it "proved" this hypothesis when it offered the trial court a massive study conducted by the U. of M. quantitatively demonstrating diversity's benefits, although objective social scientists have questioned the methodology and validity of the study's findings.

          The Split-the-Baby Argument.  Even if educational diversity at the U. of M. and other public universities is important enough to justify a thumb on the scale in favor of certain preferred minorities, the school's racial preference policies must be fashioned in a way that is "narrowly tailored" -- in other words, the implementation of racial preferences must be accomplished through laser surgery, rather than a shotgun approach. In the real world of college admissions policies, this means the thumb on the scale can't be too heavy. The administration could have it both ways by arguing that, yes, diversity is a compelling justification for preferences but, no, in this instance, the U. of M. didn't properly craft its their policies to achieve this goal.

          This last argument -- discrimination is permissible so long as it is narrowly tailored -- will result in endless years of legal wrangling, guaranteeing our colleges and universities will be kept in total fog with regard to admissions policies. This is little more than arguing for the status quo.

          The country has benefited enormously from President Bush's unequivocal stand on our most critically important foreign and domestic issues. Now is not the time, nor is this the case, to expect anything less from him and his administration.  -30-

© New York Times.   Complete text of article supplied to Adversity.Net by the American Civil Rights Institute.

Messrs. Connerly and Blum are chairman and director of legal affairs respectively at the American Civil Rights Institute.

Supreme Court grants certiorari in Grutter vs. Bollinger and Gratz vs. Bollinger ; racial preferences to achieve "diversity" in higher education at issue.

          (Sacramento) The United States Supreme Court today agreed to review two lawsuits Gratz vs. Bollinger and Grutter vs. Bollinger, both cases challenge the legality of using racial and ethnic preferences in university admissions.  Ward Connerly, chairman of the American Civil Rights Institute, called on President George W. Bush to remain unswerving with his earlier pledge to oppose racial and ethnic preferences in higher education.

          "President Bush needs to instruct the Justice Department to write a friend of the court brief in support of Barbara Grutter, the woman who was unfairly denied admission to the Univ. of Michigan law school simply because she was the wrong color," said Connerly.

          In 1996, the voters of California approved Proposition 209, which ended race-based preferences and discrimination in higher education. Since then, courts in Georgia and Texas have ruled that racial preferences in the admissions process in order to achieve "diversity" are unconstitutional, while courts in Michigan and Washington State have come to the opposite conclusion. 

          Connerly added, "The quest for 'diversity’ in higher education today is little more than a racial quota preference program. These programs are designed to ensure a racially proportionate student body by any means possible."

          He concluded, "Racial preferences are unfair to those students who were denied admission because of their skin color, and it’s degrading to those students who were admitted because of theirs. The Bush administration needs to take an unequivocal stand and reaffirm the timeless principles of equal protection for every American, with racial preferences for none. These civil rights principles ensure the equality of treatment for all Americans, despite our skin- color diversity, not because of it.

Contact the American Civil Rights Institute for further information:  (916) 444-2278

High Court To Review Race-Based Admissions (Washington Post 12/03/02)

          "The Supreme Court announced yesterday that it would decide whether race-conscious university admissions procedures intended to promote racial and ethnic diversity illegally discriminate against white applicants -- setting the stage for a historic battle at the court over access to American higher education.

          "At issue are claims by prospective students who say they were rejected by the University of Michigan's undergraduate program and law school because they are white. The applicants say Michigan uses admissions criteria that systematically shut out whites in favor of African Americans and other minorities with the same or lower grades and test scores.

          "But Michigan says its admissions process considers each applicant as an individual, factoring in race only as part of an effort to ensure all students the benefits of learning in an ethnically diverse environment.

          "It is a rationale invoked by hundreds of other colleges and universities, many of which say that without affirmative action, they would go back to being nearly all-white.

          "A high-profile Supreme Court case over race-based admissions could rekindle the wider political debate over affirmative action, which became a "wedge issue," pushing many white voters from Democratic to Republican ranks in the 1980s and '90s before receding in recent years.

          "The case is potentially sensitive for the Bush administration, whose core conservative supporters oppose affirmative action, but whose outreach efforts have targeted Hispanics and other minority voters.

          "Noting that "race is among the factors considered by virtually every selective college and university," Michigan President Mary Sue Coleman said, "[t]here is no effective substitute for the consideration of race as one of many factors in our admissions process. Other methods do not allow us to recruit a diverse student body while maintaining our consistently high academic standards."

          "In choosing applicants for admission, the university relies in part on charts ranking them by grades and test scores -- but uses separate charts for white and minority students.

          Terence J. Pell, of the Washington, DC Center for Individual Rights commented:  "No matter how the majority [of the U.S. Supreme Court] rules, the court now can't help but make a historic decision." The Center for Individual Rights is a public-interest group that is representing the white students in the Michigan litigation. Mr. Pell continues:   "The court is clearly serving notice to all interested parties that high noon is fast approaching."

          "The Michigan issues "represent the most significant civil rights cases the Supreme Court will have decided in the last quarter-century," said Theodore Shaw, associate director-counsel of the NAACP Legal Defense and Educational Fund, which represents minority students at Michigan.

          "Shaw unsuccessfully urged the court to consider whether the Michigan policy is lawful both for diversity reasons and as a remedy for the lingering effects of past racial discrimination.

          "Specifically, the court will consider whether Michigan is violating Title VI of the Civil Rights Act, which bars racial discrimination by federally funded institutions, or the clause of the Constitution's 14th Amendment that guarantees equal treatment for all citizens under state law -- or both. Arguments will be held in March, and decisions are expected by July.

          "At the heart of the university admissions issue is the court's splintered ruling in the 1978 case of Allen Bakke, a white applicant who was denied admission to medical school at the University of California at Davis, which reserved 16 percent of its spots for minorities.

          "Four justices -- two of whom, Chief Justice William H. Rehnquist and Justice John Paul Stevens, are still on the court -- ruled that the quota violated Title VI. Four others said that even quotas could be constitutional if imposed to help minorities overcome discrimination.

          "The ninth vote in the Bakke case came from the late Justice Lewis F. Powell Jr., who wrote his own opinion agreeing that quotas were impermissible, but saying that the use of race as a "plus factor" in the pursuit of diversity could be allowed.

          "Since then, educational institutions have said that a majority of the justices in the Bakke case approved of some use of race and have relied on the Powell opinion's reasoning in fashioning admissions programs that look at applicants' race as well as other factors, such as grades and extracurricular interests.

          "But opponents of affirmative action in university admissions say Powell's opinion did not establish the court's holding. They are confident of victory now partly because, since Bakke, the court has taken a dim view of race-based affirmative action in other contexts.

          "Indeed, under Supreme Court precedent, Michigan must convince the court that diversity is a "compelling" objective -- and that its use of race is carefully designed to meet it.

          "Rehnquist, Justices Antonin Scalia, Anthony M. Kennedy and Clarence Thomas are considered the court's strongest opponents of affirmative action. Stevens, who has grown more liberal in his years on the bench, and Justices David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer are likely to be most sympathetic to Michigan's case.

          "As is so often the case, legal analysts say the probable swing vote belongs to Justice Sandra Day O'Connor.

          "The Michigan case represents the culmination of a series of lawsuits by white applicants who challenged the "diversity rationale," saying that it produces de facto quotas.

          "At issue now are two such challenges. The first is by Jennifer Gratz and Patrick Hamacher, who were denied admission as undergraduates in 1995 and 1997, respectively. Their lawyers note that, according to the chart used by Michigan's admissions officers, African American and Latino students with Gratz's grades and SAT scores were guaranteed a place in the class, but two out of three similarly situated whites were excluded.

          "The second case, brought by Barbara Grutter against Michigan's law school, alleges that she was denied admission under a system that, in the name of ensuring a "critical mass" of minority enrollment, created a de facto minority quota.

          "One U.S. district judge in Michigan upheld the undergraduate program, and another struck down the law school program.

          "The cases were appealed to the Cincinnati-based U.S. Court of Appeals for the 6th Circuit. In May, that court, bitterly divided, ruled 5 to 4 that the law school program was constitutional based on Powell's opinion in the Bakke case. That ruling differed from rulings by appeals courts in New Orleans and Atlanta and coincided with one by a San Francisco-based appeals court.

          "As a result of this disagreement, lawyers from the Center for Individual Rights appealed the law school case to the Supreme Court. But because the 6th Circuit has still not issued a ruling on the undergraduate case, they also asked the justices to hear it under a special provision of Supreme Court rules.

          "Michigan objected to hearing either case but told the court that if it agreed to hear the law school case, it should hear the undergraduate case because they are so closely related.

          "The cases are Grutter v. Bollinger, No. 02-241, and Gratz v. Bollinger, No. 02-516."

© Washington Post as reported by Charles Lane.  This article originally appeared in its entirety on the front page (page A01) of the printed edition of the Washington Post on December 3, 2002.

Last known link:  http://www.washingtonpost.com/ac2/wp-dyn/A975-2002Dec2?language=printer

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