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Jewish World Review June 25, 2003 / 25 Sivan, 5763

Cal Thomas

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Negative action at the Supreme Court

http://www.NewsAndOpinion.com | The problem with trying to have it both ways is that you often can't. The Supreme Court tried to have it both ways in its 5-4 decision Monday (June 23), ruling that minority students who apply for university admission may be given an edge, but it limited how large a role race can play in a university's selection of students.

The case involved the University of Michigan and a point system it has used to give minorities an advantage over those who meet the standards for admission. The court approved a separate program, used at the university's law school, which gives race less prominence in the admissions decision-making process.

Whether race is less or more prominent, its use as a beneficial (affirmative action) or detrimental (discrimination) standard, no matter the intended purpose, violates the 14th Amendment to the Constitution, which says, "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States . nor (shall any state) deny to any person within its jurisdiction the equal protection of the laws."

Unless the Supreme Court is prepared to state that the 14th Amendment does not mean what it says, then it is in clear violation of the Constitution to grant any preference that discriminates against citizens who have no access to such a preference.

In the part of the case that gave race less prominence in law school admissions at the University of Michigan, Justice Sandra Day O'Connor claimed the Constitution "does not prohibit the law school's narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body" (emphasis mine). This is not a constitutional argument. It is an invented one. The obligation of a university is to teach and the privilege of its students is to learn. There is not a single word in the Constitution about educating citizens of the United States, nor is there a word about diversity as a "compelling interest" of the government.

If universities want to boost minority enrollment, for whatever reason, the place to begin is in the primary and secondary schools. Improved lower schools would ensure that minority (and majority) kids learn their subjects and qualify for admission based on merit instead of relying on a system designed to excuse underachievement. How does it benefit anyone - especially minorities - if they know that regardless of their performance a way into a university will be made for them, based not on the content of their character and achievement, but on the color of their skin?

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The National Assessment of Educational Process last week released "The Nation's Report Card: Reading 2000." It found that students in the dreadful Washington, D.C., school system are the worst readers in the country, despite annual per-pupil expenditures of $9,650 (second highest in the nation in 2001) and teacher salaries that rank among the nation's highest. But D.C. students who don't learn to read shouldn't worry. If they are minorities (as most are), they can count on affirmative action to get them into college, illiterate though they may be. This is the message the Supreme Court has sent in its decision.

We don't apply affirmative action in professional sports where minorities have succeeded disproportionately to their numbers in society. That's because of their skills. If skills are paramount in sports, why should they also not be paramount in education? Not everyone can be a professional athlete, but everyone can learn.

While the court's decision directly affects admissions only at public, tax-supported institutions, it is likely to have a ripple effect. Expect the ruling to influence private colleges and universities, as well as government and business.

For the equal protection clause of the 14th Amendment to be equal and to protect everyone, only a person who can prove he or she was discriminated against should be able to petition government for a redress of grievances. To allow race as a factor -- even a small factor -- in giving minorities advantages in college admission is still discrimination, and it is unconstitutional, even if a bare majority of Supreme Court justices say otherwise.

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JWR contributor Cal Thomas is the author of, among others, The Wit and Wisdom of Cal Thomas Comment by clicking here.

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