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June
24, 2003, 10:00 a.m.
Michigan
Muddle
The
Supreme Court’s schizophrenic preference.
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U.S. Supreme Court attempted a Solomonic compromise in the University
of Michigan cases on Monday. By embracing the law school's diversity-driven
admissions practices but rejecting those of the undergraduate school,
the Court has offered a muddle rather than the lucid guidance this crucial
issue demands. Its message seems to be that government schools may to
continue to practice racism by focusing on the pigmentation of school
applicants — but not too much.
Advocates of racial
equality should celebrate the Court's rejection of the automatic, 20-point
advantage given to some (but not all) of Michigan's undergraduate minority
applicants regardless of their circumstances. However, we must remain
vigilant against two new areas of mischief this decision has established:
First, the Court's
ruling that diversity constitutes a compelling state interest suggests
that racial preference schemes need not be employed as necessary evils
to correct past discrimination. In the name of burying Jim Crow or combating
some similar, modern-day ill, one could argue for such measures. However,
this newly enshrined diversity standard means that racial engineering
may continue to craft classrooms, and perhaps workplaces, to "look
like America," as Bill Clinton once put it. If that involves racial
discrimination against whites or non-approved minorities (such as Americans
of Chinese, Japanese, Vietnamese, or Cambodian ancestry), the Court seems
to find this acceptable.
Second, Michigan's
law school sought to invite a "critical mass" of minorities
to its campus. What's that, enough blacks and Hispanics to help white
kids develop a sense of rhythm? And how many black and brown faces does
it take to make that happen?
"Critical mass"
is a remarkably vague standard that can stretch just widely enough to
encompass whatever racial mix a school administrator deems desirable.
While a minority student body of five percent might be "critical"
enough at the University of Vermont, Penn State may believe that anything
less than 20 percent would be insufficiently "critical." Pick
a number. Any number. You could argue that that figure defines the threshold
between an enlightened, socially just "critical mass" and a
cold-hearted, high-speed reassertion of white privilege.
Of course, all of
this will fuel even more friction among black, white, yellow, and brown
Americans. This will generate more litigation and yet another opportunity
for the Supreme Court to make up its mind and either conclusively restore
equal protection for Americans regardless of ethnicity or thoroughly abandon
that principle so we can mourn its loss once and for all and move on.
Co-equal to the other
branches of government, the judiciary is supposed to lead, if only by
giving coherent signals as to the constitutional fitness of legislative
and executive behavior. Rather than shine a beacon decisively in one direction
or another, the Court has illuminated a disco ball that will send a dizzying
pattern of light beams swirling around us in every direction for the foreseeable
future.
—
Mr. Murdock is a columnist with the Scripps Howard News Service.
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