Don’t Split the Baby
George, listen to Jeb on affirmative action.


The Bush brothers usually see eye-to-eye on most policy issues except one: race-based affirmative action in school admissions. In 2003, President Bush’s administration submitted a muddled, politically correct, split-the-baby amicus brief to the U.S. Supreme Court in two affirmative-action admissions cases from the University of Michigan. His younger brother Jeb on the other hand, submitted a clear, factual, and legally principled one on behalf of the state of Florida. President Bush got it wrong; Governor Bush got it right.

It was a less than shining moment for the president. The Washington Post reported (on December 18, 2002) that then-Solicitor General Ted Olson was overruled by White House counsel Alberto Gonzales on how the Bush administration would handle the question of “diversity” as a constitutional issue. Olsen wanted to argue that the Constitution forbids racial preferences to achieve diversity on campus. Gonzales, however, insisted that the administration duck the constitutional question and say that the University of Michigan should have used race-neutral means to achieve diversity instead of preferences.

Remember what happened in those two Michigan cases? Justice Sandra Day O’Connor wrote a muddled, politically correct, split-the-baby opinion in which she endorsed the use of racial preferences in university admissions in order to ensure diversity, so long as the thumb on the admissions scales wasn’t too heavy. Conservatives were mightily upset — with the opinion and President Bush.

But just as the president redeemed himself with conservatives by nominating Samuel Alito to the high Court after the Harriet Miers disaster, he now has an opportunity to steer the Court in the direction his younger brother suggested in 2003. Here’s how: At issue before the Supreme Court now is the question of how much, if any, racial consideration should be given when determining which students are admitted to popular, yet oversubscribed, public secondary schools. In two cases — one from Seattle, Washington, and another from Louisville, Kentucky — the Court will resolve the question of whether the Constitution permits schools to use a student’s race, among other factors, as an admissions criterion in order to achieve racial diversity. In the Michigan cases, the Court ruled that diversity is so beneficial to the college educational experience of all students that the academic achievement bar for admissions can be lowered for certain racial and ethnic groups. Now the Court must determine if the same doctrine applies to secondary schools.

Amicus briefs to the Supreme Court in these new cases are due in a few weeks. If the Bush administration decides to submit one it should argue that the alleged benefits of diversity in K-12 schools are not the same as they may be in college or law school. It is one thing to assert that having blacks and Hispanics in a law-school discussion of police profiling is an educational benefit, while it is another altogether to assert the same for an eighth-grade geometry class. This administration should tell the Court that there is no compelling reason for K-12 schools to use race or ethnicity at all in student assignments — for diversity, racial balance, or any of the dubious benefits offered by education experts. If popular schools or magnet programs are oversubscribed, a school board should use a colorblind lottery system to determine which academically qualified applicants are accepted.

Yet, as fair and sensible as they may be, colorblind lotteries are not acceptable to the education bureaucracy. For them, extending the diversity rationale for racial preferences into K-12 grades is the ultimate goal in their long-running attempt to achieve strict racial proportionality in every facet of education.

The good news for America is that slowly, yet surely, our neighborhoods, schools, and workplaces have grown more racially integrated during the last twenty years. But “integration” is no longer the goal of the civil rights groups or the education bureaucracy. That was achieved long ago. Now it’s “diversity.” For them, diversity means racial proportionality, while integration means racial incorporation. It’s a distinction with a real difference. So diversity, in this respect, has become untethered from integration and has assumed a life of its own. For most of the education establishment, diversity is now integration’s rival.

It is entirely possible that the Supreme Court is troubled by the Pandora’s Box they opened with the Michigan cases in 2003 since one of the questions they accepted for review is whether to reverse its earlier opinion. After all, it is widely recognized that Justice O’Connor’s opinion that diversity is a compelling governmental interest that permits racial classifications and preferences is being strip-mined by colleges and universities in a variety of new and old ways. Now, this same diversity rationale is being used for hiring and promoting professors, awarding student fellowships and scholarships, and dormitory assignments. Roger Clegg of the Center for Equal Opportunity has asked, “What’s stopping government from evoking diversity to justify the makeup of juries or even for service on public boards?”

It’s a shame President Bush and the Supreme Court did not embrace the legal principles of Jeb Bush back in 2003 and assert that public institutions can only consider a person’s race in order to remedy prior racial discrimination. If the Bush administration decides to file a brief in these two new cases, let’s hope it won’t make the same mistake again. It should either make the principled argument that preferences to achieve diversity in K-12 grades is wrong and defend it courageously in public–or stay out completely. Just please don’t split the baby again.

Edward Blum is a visiting fellow at the American Enterprise Institute in Washington, D.C. and author of a forthcoming book on the Voting Rights Act.


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