Jewish World Review Jan. 21, 2003 / 18 Shevat, 5763

Terry Eastland

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President decides to punt on affirmative action case | On Wednesday, President Bush announced that his administration would file briefs in opposition to the University of Michigan affirmative action policies now before the Supreme Court. Mr. Bush apparently would be taking, as one news account put it, a "hard-line" position.

But then, late Thursday night, Solicitor General Theodore Olson filed the briefs. To be sure, they ask the court to declare the Michigan policies unconstitutional. But they do so in a way that hardly can be called "hard-line." In fact, by avoiding key issues in the litigation, the briefs would permit the illegal and immoral business at the core of the Michigan policies - using race (and ethnicity) to favor and disfavor applicants.

The administration argues that the race-based admissions policies (one is at the undergraduate school, the other at the law school) are unconstitutional for two reasons. First, they employ quotas. And, second, school officials resorted to race-based policies without first using "race-neutral alternatives."

The administration's arguments go only so far. If the court should accept the administration's advice, no one should be surprised if admissions officers at Michigan soon are back to admitting by race.

Consider the quota argument. Twenty-five years ago in the Bakke case, the court reviewed a California medical school admissions policy that reserved 16 of the 100 seats in each class for members of certain minority groups. The court judged that a quota and struck it down. The administration wants the court to see Michigan in terms of Bakke, advising that the school's policies use quotas that, though "disguised," are illegal under that landmark ruling.

When Bakke was handed down, David Saxon, then the president of the University of California, greeted the decision as a "great victory." He explained, "Any ruling that introduces restriction on the use of race is going to make it more difficult but not very much more difficult." Mr. Saxon could say that because, in Bakke, the court also permitted race-based admissions, provided they weren't quotas.

Mr. Saxon quickly was proved a prophet, as higher education officials continued to use race in admissions, sometimes with "disguised" quotas such as those the administration rightly deplores in the Michigan cases. But who can doubt that if "disguised" quotas now are struck down, such a "restriction on the use of race" again will "make it more difficult but not very much more difficult" to admit by race?

The question the administration studiously avoids - the question insistently raised in affirmative action litigation in no fewer than four different courts of appeals - is whether indeed a public university may reward or penalize prospective students on the basis of race.

Amazingly, the administration has no opinion on whether Justice Lewis Powell, who wrote the influential opinion in Bakke, was right to say that, under the Constitution, it is OK for admissions officers to regard race as "a plus" that can "tip the balance" in an applicant's favor.

Nor does the administration have an opinion on the constitutionality of the so-called diversity rationale Michigan asserts to justify its racial policies. Here again the administration avoids Mr. Powell, for it also was in Bakke that Mr. Powell said that achieving a diverse student body qualified as a "compelling interest" of the kind necessary under the Constitution to permit a state to draw distinctions - and discriminate - on the basis of race.

The administration's avoidance of Mr. Powell on this point may be regarded as ingenious, since it argues, fairly enough in light of the court's precedents, that regardless of the merits of a state's asserted justification for race-based policies, it may not use them "without considering race-neutral alternatives and employing them if they would prove efficacious."

But the argument, however creative, cuts only so deep. It says only what Michigan must do first. What if, the court having ruled as the administration suggests, Michigan were to use "race-neutral alternatives" but found they weren't "efficacious"? It then could use race-based policies.

A footnote in one of the briefs ponders that eventuality: "Then [but not now!] the question whether race could ever be a consideration would arise." To answer that question, of course, you would need to know, as the footnote says, whether Michigan had a truly constitutional compelling interest. Which is to say: whether the diversity rationale is constitutional. The footnote ends, "The court need not reach that question in this case."

But the court probably will reach that question. The courts of appeals are divided over diversity, and the court is unlikely to have taken Michigan only to punt the big issues - as, to its discredit, the administration has. Staying out of the cases would have been better than entering them with so little to say.

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JWR contributor Terry Eastland is is publisher of The Weekly Standard.Comment by clicking here.

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© 2002, Terry Eastland