Jewish World Review Dec. 10, 2002 / 5 Teves, 5763

Terry Eastland

JWR's Pundits
World Editorial
Cartoon Showcase

Mallard Fillmore

Michael Barone
Mona Charen
Linda Chavez
Ann Coulter
Greg Crosby
Larry Elder
Don Feder
Suzanne Fields
James Glassman
Paul Greenberg
Bob Greene
Betsy Hart
Nat Hentoff
David Horowitz
Marianne Jennings
Michael Kelly
Mort Kondracke
Ch. Krauthammer
Lawrence Kudlow
Dr. Laura
John Leo
Michelle Malkin
Jackie Mason
Chris Matthews
Michael Medved
Kathleen Parker
Wes Pruden
Sam Schulman
Amity Shlaes
Roger Simon
Tony Snow
Thomas Sowell
Cal Thomas
Jonathan S. Tobin
Ben Wattenberg
George Will
Bruce Williams
Walter Williams
Mort Zuckerman

Consumer Reports

Will High Court be guilty of activism? | Upon learning that the Supreme Court had accepted the big affirmative action cases involving her campus, University of Michigan President Mary Sue Coleman said about the only thing that she could, which was that "we are looking forward to presenting our cases." Ms. Coleman's and Michigan's problem is the law, and the law tilts pretty plainly against the school's race-conscious admissions policies.

Before the court are lawsuits challenging the policies used by the undergraduate and law schools. The undergraduate school awards applicants "points," with 100 (out of a possible 150) sufficing for admission. A perfect SAT score, for example, will net an applicant 12 points. Being African-American, Hispanic or American Indian is worth 20 points (a number calculated to ensure more or less the same number of minority admissions as had been achieved under a quota system abandoned in 1998 after it became public knowledge).

The law school targets applicants from the same three groups. It doesn't give points but weights race and ethnicity to such an extent that the odds of admission for the minority students are hundreds of times greater than those for all other students with similar academic credentials. The purpose of so weighting by race is to ensure in each class what administrators call a "critical mass" of minority students at least 10 percent.

Michigan proclaims that its policies aren't quota systems, that they merely "consider" race and ethnicity. But the policies produce numbers similar to those a quota system would yield.

Legally speaking, Michigan has a 14th Amendment problem. No state, says that famous amendment, shall "deny to any person within its jurisdiction the equal protection of the laws." A five-justice majority, with Sandra Day O'Connor writing the critical opinions, has built a body of law insisting that there are not two equal protection clauses one for minorities and one for nonminorities but just one. And it protects people of all races and ethnic backgrounds, using the same standards.

Michigan, however, has established racial classifications that prevent applicants lacking the necessary racial status from receiving the same consideration accorded those who possess it. For its admissions policies to survive the O'Connor majority, Michigan must persuade the justices that its use of race serves a "compelling interest." Michigan offers "diversity" as its (one and only) compelling interest.

Changing demographics mean that groups favored today may be disfavored tomorrow. (As has happened with Asian-Americans.) New "critical masses" may need to be achieved. Affirmative action justified by diversity is unending, simply because there is no reason that it should end.

The other problem Michigan faces is Title VI of the Civil Rights Act of 1964, which provides that "no person ... shall on the ground of race, color, or national origin be subjected to discrimination under any program or activity receiving federal financial assistance."

Commentary on the Michigan cases has centered on the Constitution and not Title VI. And yet Title VI applies. It makes no exceptions (and certainly not for "diversity") to its nondiscrimination command. And note this: in the landmark Bakke case of 1978 the first and only time the court spoke to affirmative action in higher education Justice John Paul Stevens, commonly regarded as a judicial liberal, invoked Title VI to nullify a race-based policy.

It is hardly unthinkable that as many as six justices might vote against Michigan. And maybe more: Justices David Souter, Ruth Bader Ginsburg, and Stephen Breyer see themselves as stout defenders of both equal protection and the laws of Congress.

Supporters of Michigan say the court will be guilty of activism if it strikes down the challenged policies. Not so. The law is what it is. If people don't like it, they can of course try to change it. The justices, however, will be derelict in their duty if they fail to apply it and rewrite it instead.

Appreciate this writer's work? Why not sign-up for JWR's daily update. It's free. Just click here.

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

12/03/02: The missing facts in news accounts of Saudi Princess Haifa's putative 'charity'
11/26/02: Americans don't have to be worried about Big Brother
11/19/02: Texas' reputation for flamboyance may be revised
11/11/02: Bush now can repair confirmation system
11/05/02: Dems shouldn't believe too strongly in history
10/30/02: Snipers had lots of motives
10/23/02: No one should be shut out of marketplace of ideas
10/15/02: Open hearings that could imperil the nation
10/08/02: Debating the clear and present danger
10/01/02: A great awakening in China?
09/25/02: Abortion, again? The settled but still unsettling law of Roe v. Wade
09/18/02: A relevant presidency--and irrelevant U.N?
09/10/02: Ashcroft's obtuse judicial statement
09/04/02: The Education Gadfly stings again
08/28/02: So then let the president declare war
08/21/02: Will Bush finally 'fix' affirmative action once and for all?
08/06/02: President must take up cause of Egyptian democracy warrior
07/31/02: With each war, civil liberties are curtailed less

© 2002, Terry Eastland