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The Kennedy Dissent and the Abomination of Grutter
Overlooked but instructive.


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Not content merely to crow over their great victory in the Grutter decision, which dumps the pernicious concept of racial preferences into the Constitution, the supporters of reverse discrimination turned with fury and contempt on the dissenting opinions of Justices Scalia and Thomas. Without such conservative bogeymen as these two, the left-liberal forces could scarcely preserve their sense of themselves as a beleaguered insurgency in American life, since in the real world they are reaping one victory after another and radically remaking the landscape of our society.

Unfortunately, as a result of the focus on Scalia and Thomas and their principled conservative dissents, insufficient attention has been paid to the less conservative but still instructive dissent by Justice Kennedy. Unlike Justices Thomas and Scalia, Justice Kennedy supports Justice Lewis Powell’s opinion in Bakke, which formed the basis for the Court’s decision in Grutter, and dissents from Grutter precisely because it does not follow Bakke. We may not agree with all his premises, and may not like the stances he has taken in other decisions, but in his Grutter dissent, Kennedy performs an invaluable service.

Kennedy maintains that Powell set the proper goal, racial diversity for the purpose of yielding educational benefits, and laid out the proper means, strict scrutiny to make sure that race is only a modest “plus” factor in an individualized review of applicants. If strict scrutiny or individualized review is abandoned, says Kennedy, “or manipulated to distort its real and accepted meaning, the Court lacks authority to approve the use of race even in this modest, limited way.”

And, Kennedy emphasizes, Chief Justice Rehnquist’s dissenting opinion in Grutter, with which he, Justice Scalia, and Justice Thomas concur, “demonstrates beyond question why the concept of [attaining a] critical mass [of minorities] is a delusion used by the law school to mask its attempt to make race an automatic factor in most instances and to achieve numerical goals indistinguishable from quotas.” Rehnquist showed that the number of preferred minorities accepted by the law school suspiciously and damningly tracked their proportion of the applicant pool, thus clearly indicating a determination to achieve racial balance. This would be “patently unconstitutional” even according to the Grutter majority, who then went on to accept the law school’s claim that the numbers of minority admissions did not constitute quotas because they had been achieved through individualized review of all applicants. Kennedy then undertakes to show even more specifically than Rehnquist how the law school self-evidently violated individualized review in its quest for a “critical mass” of minorities, and he faults the Court for accepting, after a mere “perfunctory” review, the law school’s pretensions to the contrary.

Kennedy explains that about 80 to 85 percent of places in the entering class at Michigan go to applicants with upper range grades and law-school admissions-test scores. Race or ethnicity is not likely to affect these admissions. But for the remaining 15 to 20 percent, race and ethnicity are “outcome determinative,” and individualized review is abandoned.

As proof of this, he cites the fact that as each admissions session at Michigan wears on toward its end, the admissions officers consult daily reports which indicate the composition of the incoming class along racial lines. Dennis Shields, director of admissions from 1991 to 1996, testified that the further along the admissions season, the more frequently he looked at these reports to see the change from day to day. Shields had been instructed by the law school’s admissions policy to pay attention to the racial makeup of the class and these reports helped him to do so.

The law school “did nothing to guard against the danger that race would become determinative” at this stage of the admissions process, Kennedy observes, and they “provided no guidelines on how to reconcile individual assessment with the directive to admit a critical mass of minority students.” He concludes:

The consultation of daily reports during the last stages in the admissions process suggests there was no further attempt at individual review save for race itself. The admissions officers could use the reports to recalibrate the plus factor given to race depending on how close they were to achieving the Law School’s goal of critical mass. The bonus factor of race would then become divorced from individual review; it would be premised instead on the numerical objective set by the Law School.

In other words, instead of a quiet, calm, dignified, Symposium-like, “holistic, individualized review” among admissions officers thoughtfully sipping tea while pondering applicant files, as the Court maintains, the truth was something closer to a Keystone Kops scenario, with the admissions officers falling upon the daily reports to see the developing composition of the class and then scooting back to the applicant pool to toss a few more blacks and Hispanics into the pot in order to reach “critical mass.”

Kennedy believes that other affirmative-action programs do manage to maintain the delicate balance of keeping race as only a modest plus factor while seeking the purported educational benefits of a racially diverse class. We may or may not accept this claim, and may well feel that what he saw in Michigan’s unseemly methods toward the close of its admissions process is typical of what happens at all of today’s selective universities as they try to walk the nonexistent line between race as a plus factor and race as a determinative factor. Given the lower credentials of minority applicants to selective schools at the present time, any attempt to approach racial proportionality must inevitably make race count over academic qualifications.

Kennedy’s bracing analysis nevertheless enables us to see that the admissions practices now approved by the Supreme Court are based on egregious race-counting, not on any “narrow tailoring.” Kennedy also adds that the goal of developing better ways to attain diversity by truly narrow means will now be short-circuited because of the Court’s acceptance of Michigan’s transparent fig leaf. To this we can add Thomas’s observation that there will now be little incentive for minorities to strive to become more academically competitive, since they know that they will continue to be accepted at elite universities even with far lesser qualifications. These and other considerations prevent us from taking any comfort whatsoever in Justice O’Connor’s fatuous suggestion that racial preferences, having just received a constitutional seal of approval, will somehow wither away in 25 years.

Far from withering away over the next 25 years, the system of racial proportionality may have become so institutionalized by that time that a future Supreme Court may well forego the tortured rationalizations about “educational benefits” and support group entitlements outright, the approach urged by Justice Ginsburg in her concurrence, joined by Justice Breyer. As Powell’s left-leaning concurrence with the majority in Bakke formed the basis of the later Grutter decision, Ginsburg’s left-leaning concurrence with the majority in Grutter may well form the basis of some future decision that proclaims “de facto equality” as a constitutional goal of admissions practices. Achieving this goal is the actual motive of many of the supporters of “diversity,” Kennedy points out in his dissent, the idea of educational benefits merely the cover.

Ominous in this regard is the fact that Ginsburg at the outset of her concurrence cites, not the Constitution, but the International Convention on the Elimination of All Forms of Racial Discrimination, which sounds like something from a satire on the third world by John Updike (except that it isn’t funny). Apart from the fact that this U.N. Convention is not a proper basis for interpreting the U.S. Constitution, the very title of the document suggests the sort of limitless, utopian goal that our constitutional tradition abhors. The only way to “eliminate all forms of racial discrimination,” that is, to achieve “de facto equality,” is to institute racial proportionality in all walks of life, everywhere on earth, in perpetuity. Without strenuous opposition such documents will more and more be allowed to replace our Constitution and define us as a society.

Contrary to Bakke and other court decisions regarding race, Ginsburg presses the idea that reverse discrimination is justified because of the legacy of the past and what she insists is continuing, generalized discrimination in the present, although no one claimed that Michigan had been discriminating against minorities. She cites also the poorer schools that many blacks and Hispanics attend, but Justice Thomas’s dissent points out that affirmative action does not help students from such backgrounds.

For its part, the Court’s opinion in Grutter, following Bakke, rejects racial preferences as a means of remedying historical discrimination or patterns of unequal achievement among different groups, but then goes on to advance these very same notions in its Orwellian claims that in order for us to be “one nation, indivisible,” we must have group rights and group representation, and in order to prove that “access” to leadership positions is available for minorities in our society, we must guarantee equal outcomes.

Meanwhile, our schools are instilling in the rising generations the idea that the American standard of equality of individuals under the law is insufficient for what is termed “an increasingly global society,” and must therefore be corrected by group rights insuring proportional outcomes. A valuable book by Alan Quist, produced by the Maple River Education Coalition, Fed Ed: The New Federal Curriculum and How It’s Enforced, outlines how the widely used and virtually mandated federal curriculum is subverting American constitutional ideals and teaching global, multicultural, and socialist concepts instead. Alas, President Bush himself has embraced diversity in the sense of proportional representation, along with the multicultural notion of America’s future as a composite of separate ethnic, linguistic, and cultural enclaves.

There is no countering the heartsickness Grutter induces. What Kennedy calls the “corrosive category of race” is now enshrined in the Constitution and generations of innocent white and possibly Asian students will be denied what is due them in order to benefit lesser-qualified blacks, Hispanics, and native Americans. The prospect of constitutionally supported group rights will no doubt be extended beyond university preferences to other areas of the culture as well, more than they already have been, that is, and to other expanding groups in our demographically changing society, the latter thanks to large-scale immigration enthusiastically supported by conservatives. (Asians present a mixed picture regarding racial preferences. They do not need favoritism in academia, and seem to attain admission beyond their proportion of the population even when preferences are granted to other groups. But they do seek preferences in areas where they do not naturally excel, such as in media. They are also major beneficiaries — and major advocates — of affirmative action in government contracting and employment.)

These minorities will increasingly assume the identity of legally pampered groups, puffed up with all the arrogance and defensiveness of unearned entitlement, and clinging to an entrenched interest that will be virtually impossible to remove once it has been established. We note with dismay reports of the belligerent and disrespectful behavior exhibited by supporters of racial preferences at the press conference at which the great Ward Connerly announced his initiative for a referendum to outlaw discrimination in the state of Michigan. These preference supporters shouted anti-white epithets and carried signs that read “Equality by any means necessary,” bespeaking a thuggish, resentful, unintellectual mentality.

We must fight this modern-day Dred Scott decision with heart and soul. Conservatives, neoconservatives, traditionalists, classical liberals, Straussians — all those who believe that America is defined by the proposition of individual equality under the law — must pour out their protests with unremitting fervor. We should anticipate books and conferences and special magazine issues devoted to it, and newspaper ads explaining its counterconstitutional implications and denouncing them. We should expect the full panoply of the conservative movement especially, with all its organizational resources, to reject this decision and to support legal actions where possible, as well as state measures to ban racial preferences, such as the effort led by Ward Connerly now under way in Michigan. We must not use the war on terrorism as an excuse to turn from these tasks.

Grutter may not be overturned in our lifetime. It may take what amounts to a second Civil War to overturn it. But whatever our immediate prospects of success or failure, future generations must see that there were those who refused to abide its blatant reversal of our constitutional order, its obliteration of the ideal of a common citizenship, and its shameless undermining of the American principle of equality of individuals under the law. We will do this or else watch as the last best hope slowly flickers from the earth.

Carol Iannone writes on literature and culture.



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