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The Solicitor General’s Brief
For diversity and against racism.


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It is now well known that the president favors diversity of experience in higher education, even racial experience, but not the mindless or unconstitutional use of race in admissions. What that actually means under the law was left for Solicitor General Theodore Olson to articulate in Supreme Court briefs he filed late Thursday.

He wrote masterfully. The briefs reaffirm that the equal-protection clause of the Constitution outlaws quotas under any circumstances and forbids the government from employing race-based policies when race-neutral ones are available, and frankly, better.

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The principled coherence of the solicitor general’s argument can be appreciated only if one is able to get over past legalisms. All the courts of appeals, for example, thought the question to be starkly: Is racial diversity a compelling governmental interest? It is more subtle than that, and the brief filed by Mr. Olson tellingly reveals that no matter how one parses it, Bakke doesn’t yield an answer. Quite the contrary, Bakke simply invalidated a racial quota, and beyond that, its meaning has hopelessly divided the courts of appeal.

Putting that highly academic legal debate aside, the solicitor general then brings us back to the main issue: When can race be used by a public entity? Answer: Rarely — thus far, in precedent, the Supreme Court has said only when necessary to remedy past discrimination and then only by narrowly tailored means. Next, Olson asks, does this help us resolve the case at hand? Answer: Yes, because the University of Michigan has used race so casually and so dispositively, that its practice cannot possibly fit within those rare exceptions allowed by the Constitution.

This is where most of us on the conservative side of the ledger would have wanted to end the discussion, but in an insightful move, the solicitor general doesn’t abbreviate his argument. Rather, he comes to grips with both the political and legal reality. Politically, diversity is, and is perceived to be, an educational good. Legally, few doubt that racism still exists, whether subtle or not, and it affects the lives of those who encounter it. This is why it was essential for the solicitor general, in denying new forms of racism, not to be insensitive to race. He wasn’t. In recognizing that meaningful experiential diversity (even that reflecting racial experience) ought to be part of the educational setting, the solicitor general became a better steward of higher-educational policy than the president of the University of Michigan.

In short, Ted Olson has made it legally tenable to be both for diversity and against racism. The battle cry before his brief was that diversity shouldn’t matter; after the brief, the proposition was far more nuanced and far more congenial to the aims of higher education: Diversity as a matter of law cannot justify racial discrimination because ample race-neutral means exist to yield diversity.

How did we come to this happy end? The stories are rife about the influence of the president and his White House advisers. Political intervention, historically, has not always gone well for legal argument. Indeed, the tale of the Carter White House’s aggressive rewriting of the Bakke brief is an often recounted low point in Justice Department folklore. Normally, politics intercedes, and the result is a diminution of principle or precedent. This is one of those rare cases where the politics actually yielded a superior outcome. Here, the political reality that racism still exists and that genuine diversity of experience can be valuable in the classroom fostered within the solicitor general’s briefing a refreshing honesty about both — without in any way giving up the core principle that public decisions based upon race are anathema. Perhaps, it was the political discussion — or at least having to explain his thinking to a non-lawyer president — that allowed the solicitor general to leap over the puzzles of whether Justice Powell spoke for the Court in Bakke, and what was he trying to say. Such is beside the point given the deeply flawed nature of Michigan’s program which does not promote genuine diversity of experience or viewpoint at all, but indulges the pernicious viewpoint that everyone of a given race thinks in a given way.

The political debate allowed the solicitor general’s work to navigate a conservative base that was too quick to deny the significance of diversity for education, a liberal constituency that was too quick to employ an overt or covert quota system and label its mechanical outcomes as diversity, and, in the end, to arrive at the destination of equal justice under law. Even though the Wolverine was pressing at the door for illicit and unconstitutional preferences, the president and his lawyers illustrated how a genuine commitment to race-neutral inclusion is not only possible, but right.

— Douglas W. Kmiec is dean and St. Thomas More Professor of Law at the Catholic University of America, former assistant attorney general, and senior policy fellow at Pepperdine University.



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