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The Abominable Snow Job
Court says discrimination on the basis of race is not unlawful discrimination.


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Peter Kirsanow

History teaches that bad Supreme Court decisions are rarely just wrong, that is to say, they are not simply legally incorrect or poorly reasoned. Bad Supreme Court decisions usually suffer from multiple infirmities: Some are morally repugnant (Dred Scott), some usurp the prerogatives of the legislature and manufacture rights out of whole cloth (Roe), and others are a naked exercise in political and social expediency (Plessy).

Make no mistake: The dual opinions in the Michigan preference cases (Grutter v. Bollinger and Gratz v. Bollinger) are not on the same practical or moral plane as Dred Scott, Roe, or Plessy. Obviously, the consequences flowing from the Michigan cases are nowhere near as profound. But, the Michigan opinions nevertheless impress for the sheer banality of the tortuous reasoning used to convert the plain, unambiguous language of the Fourteenth Amendment into a license to discriminate…provided it is done artfully.

The two cases are replete with concurrences, dissents, and partial dissents and there are scores of points and counterpoints made throughout each of them. Over the course of the next several days, weeks, and months various aspects of the myriad opinions will be scrutinized and commented upon. Nonetheless, even at this early stage at least three overarching points may be made.

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But first a few salient facts: The key opinion is obviously that of Justice O’Connor in Grutter (the law-school case), for it holds that a diverse student body is indeed a compelling state interest. This is by far the Court’s most important determination because state-sponsored institutions across the country may now lawfully consider race in admissions.

Justice O’Connor’s opinion also held that the law school’s preference program, in which race/ethnicity is used as a “plus” factor to achieve a “critical mass” of minorities, is narrowly tailored. (Having held that diversity is a compelling state interest, the Court struck down the undergraduate admissions program as not narrowly tailored.) Justices Thomas and Scalia, in an elegant opinion authored by Justice Thomas, were the only justices to unequivocally reject the claim that campus diversity is a compelling state interest.

Now three observations:

STRICT SCRUTINY NOW MEANS A CURSORY REVIEW
The Court’s holding that student-body diversity is a compelling state interest is not only a rank perversion of the Fourteenth Amendment but is wholly inconsistent with the strict-scrutiny analysis employed by the Court in the past. The Court has previously rejected amorphous concepts such as “societal discrimination” as qualifying as a compelling governmental interest. Only remediation of past discrimination, national security, and perhaps “social emergencies rising to the level of imminent danger to life and limb” qualify.

But the Grutter majority accepts at face value the fuzzy rationale that student diversity is a compelling state interest because a “critical mass” or “meaningful numbers” of minority students “break down barriers” and produce “more spirited discussions.” Aside from the fact that this rationale has been, if not debunked, rendered highly suspect by studies by the National Association of Scholars and Professors Rothman, Lipset, and Nevitte among others, it hardly justifies corrupting the clear language of the Fourteenth Amendment that “no state…shall deny any person within its jurisdiction the equal protection of the law.”

Until now, qualifying as a compelling state interest has been perhaps the most difficult legal standard to meet in our nation’s jurisprudence. Nonetheless, the Court simply credits the experts’ studies, reports, and amici briefs from preference proponents to summarily conclude that diversity is a compelling state interest, despite never precisely defining that interest. The Court simply accords the law school broad deference to determine the nature of the interest — a deference, as Justice Thomas notes, completely antithetical to strict scrutiny. It is not an exaggeration to say that today a compelling state interest is any nice idea favored by the elite and backed by flimsy social science.

PERPETUITY IS VERY NARROW
The Court also completely abandons the standards it has erected to evaluate whether a racial classification is narrowly tailored.

The Court’s holding that Michigan’s undergrad preference program is not narrowly tailored is a no-brainer. No one believed the Court would find otherwise. The focus has always been on the law school’s policy of using race as a plus factor to achieve a “critical mass” of minorities on campuses and now the Court has ruled that policy constitutional.

Chief Justice Rehnquist’s dissent eviscerates the majority’s finding that the law school’s program was narrowly tailored. Rehnquist notes that the law school’s program employs guile and artifice to admit preferred minorities at rates that produce a critical mass of minority students that remains suspiciously constant each year. (Can you say quota?) Despite the law school’s claim that race is only one factor among many and used in a flexible fashion, the percentage of black, Hispanic, and Native American applicants correlates so closely with the percentage of those admitted from such groups that there can be no doubt that race is clearly the deciding factor in admission. In fact, the percentage of offers of admission to minority students, just coincidentally has never fallen below 12 percent and yet the majority insists that there were no numerical quotas.

The Court has consistently held that racial classifications are so pernicious, so inherently suspect, that their use must always be extremely narrow and precise. Nonetheless, the majority accords the law school astonishing temporal latitude regarding the use of race in admissions. Indeed, the Court has created the bizarre paradox that racial preferences designed to remedy actual cases of discrimination must be finite, but those created merely to satisfy the unproven theories of social engineers may be interminable.

SOME GUIDANCE, BUT NO FINALITY
Perhaps recognizing that in upholding a racial classification that appears unlimited in duration the Court has departed from the established strict-scrutiny requirement that preferences have a clear endpoint, the majority makes the astonishing pronouncement that it expects that in 25 years, preferences will no longer be necessary. The Court further suggests that preference programs contain sunset provisions and be periodically reviewed to determine whether or not the preferences are no longer required. This will undoubtedly be a source of further litigation. Claimants will assert that there is no basis for continuing a preference program and colleges will have to marshal evidence that without preferences the ostensible educational benefits of diversity will be lost. Accordingly, college general counsels will advise their clients to not only adopt a preference program that more closely approximates that of the Michigan law school but to include periodic reviews, if not sunset provisions, in such programs. These reviews will likely be formulaic, very similar to the reviews conducted on set-aside programs after the Richmond v. Croson decision. Yet if institutions cannot articulate an ongoing pedagogical need for preferences, they will find themselves in court.

It will take months, if not years, to fully assess the impact of Michigan, but there will be little immediate practical effect. Minority college enrollment will remain virtually unchanged. College-admissions officers will scramble to adjust their respective programs to comport with that of UM Law School. Black and Hispanic reading and math scores, as recently gauged by the National Assessment of Educational Progress, will lag woefully behind those of whites and Asians.

But while the immediate practical effect may be negligible, the long-term social cost will be pronounced. Aside from the violence the decision does to the rule of law, it has consigned at least one more generation of minorities to hard labor under the stigma of perceived incompetency. Politicians and society at large get another pass at addressing the real issues underlying minority academic underachievement — sub-par K-12 education and family environments incompatible with academic proficiency. The purported beneficiaries of preferences will continue to be harmed by the disincentives associated with the preference regime: As Thomas Sowell, Glenn Loury, and others have noted, those beneficiaries will be less inclined to invest time and energy in skill and performance enhancing activities that will allow them to be competitive.

Optimists will say that the good news is that preferences must now be more narrowly tailored and that perhaps the end is in sight; but a Court that can uphold a program that only Lewis G. Carroll could appreciate is not cause for optimism, for racial preferences have now vitiated the equal-protection guarantee of the Constitution and they will not go away for a long time to come.

Everyone wants a society where individuals from every ethnic and racial group have an equal opportunity to achieve their respective dreams. Yet the closer we get to being such a society, the more we seem to count by race. TO BE CONTINUED. . . .

Peter Kirsanow is a member of the U.S. Commission on Civil Rights.



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