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Jewish World Review Dec. 4, 2002 / 29 Kislev, 5763

David Limbaugh

David Limbaugh
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Race, law and society


http://www.NewsAndOpinion.com | The United States Supreme Court's decision to review Grutter v. Bollinger could have long-term consequences in how our society approaches issues of race, affirmative action, quotas and diversity as we enter this new millennium.

The case began when Barbara Grutter, a 43-year-old white woman, sued the University of Michigan law school for racial discrimination when it denied her admission while accepting many other applicants with objectively inferior academic credentials.

The school admitted that it considered the applicant's race as one of many factors in its admissions decisions but denied that it used quotas. It sought to justify its consideration of race to promote diversity, which it contended created a better educational environment.

The United States District Court didn't buy the school's arguments. While the Court didn't find that the school was using quotas per se, it did reject the school's attempt to downplay race as a factor in its admission decisions. The Court found "the evidence indisputably demonstrates that the law school places a very heavy emphasis on an applicant's race in deciding whether to accept or reject."

Such "racial classifications," by a state-funded institution, according to the Court, can only be justified under the law if they serve the "compelling state interest" of remedying past discrimination committed specifically by that institution. Promoting diversity, in other words, was not a "compelling state interest" to warrant this "reverse" discrimination. Since there was no proof that the law school had ever discriminated against the favored groups: African-Americans, Native-Americans or Hispanics, the Court ruled that the school's admissions policy was unconstitutional and in violation of Title VI of the 1964 Civil Rights Act.

The Sixth Circuit United States Court of Appeals reversed the District Court, holding that a race-conscious admissions program could be justified for reasons other than to remedy past discrimination and promoting diversity is one of those reasons. The United States Supreme Court, presumably, will tell us which court is correct.

How will the Supremes rule? Well, there seems to be a consensus that the 1978 Bakke case (Regents of the Univ. of Cal. v. Bakke) outlawed quotas. But what about the use of racial classifications that don't quite rise to the level of quotas? Can such classifications ever be justified in the absence of evidence of past discrimination by the specific institution involved?

The Equal Protection Clause of the 14th Amendment has been interpreted to mean that the "Constitution is color-blind, and neither knows nor tolerates classes among citizens." But the actual decision in this case will turn on the exceptions to that principle. The Supreme Court will have to decide whether the goal of promoting diversity will become another exception (along with the goal of remedying past discrimination) to the rule against racial discrimination.

When it's all said and done, the Court's decision will likely be based more on policy than legal considerations. It will involve value judgments having little to do with the law. Sure, the decision will be couched in esoteric legalese, but it will ultimately be a question of whether the Court determines that diversity is an essential policy.

The Supreme Court in these types of issues, like it or not, often becomes a super legislature. If it were merely an interpreter of the law -- strictly a judicial body as I believe it was intended to be -- it would be hard pressed to carve out exceptions to the constitutional and statutory prescriptions against racial discrimination.

It is clearly the Court's prerogative to decide whether racial classifications violate the Equal Protection Clause in the first place. But once that decision is made, the Court crosses the line when it invents exceptions, no matter how socially desirable it deems them to be.

But while we're talking about these value judgments, I remain firmly convinced that our society is thinking way too much in terms of groups and classes than individuals. This is not only foreign to the American ideal of equal opportunity, but is insulting and destructive to the individuals comprising these favored groups and classes, as well as damaging to race relations overall.

America will be a better place in the long run if it resists the temptation to yield to societal pressure to impose politically correct value judgments and musters the courage to adhere to colorblindness.

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David Limbaugh, a columnist and attorney practicing in Cape Girardeau, Mo., is the author of the just-released exposť about corruption in the Clinton-Reno Justice Department, "Absolute Power." Send your comments to him by clicking here.

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