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College Rulings Add Insult to Injury

Court's upholding of admissions preference glosses over need for better early schooling.

June 29, 2003|Abigail Thernstrom | Abigail Thernstrom is a senior fellow at the Manhattan Institute, a commissioner on the U.S. Commission on Civil Rights and co-author of "America in Black and White: One Nation, Indivisible."

BOSTON — Never count on the U.S. Supreme Court to think and write clearly. Its two decisions in the University of Michigan affirmative action cases are, to put it mildly, a mess. But the bottom line seems clear enough, even if the reasoning barely qualifies as "reason." The Supreme Court has told those of us who abhor racial preferences to get lost. Our principles, arguments and evidence about how those preferences work have been dumped in a dead-letter box. The proponents of racial-driven decision-making have won. Big-time.

Some preference opponents have been trying to spin the decisions as something-for-us, something-for-them. They should stop trying. The effort is as absurd as the court's own spin, pretending that the 14th Amendment's promise of racial equality is alive and well, while upholding racial double standards in University of Michigan law school admissions in Grutter vs. Bollinger.

In Gratz vs. Bollinger, which dealt with the school's undergraduate admissions, the court struck down the blatant quota system that the university was using to admit black and Latino applicants. But that decision was unimportant. Six members of the court agreed that the school was a tad over the line in assigning 20 extra points (on a 150-point scale) just for the color of an applicant's skin, when perfect SAT scores counted for less. In other words, extraordinary academic promise meant less than the presence of African American or Latino blood. Do something just a little more subtle, the majority of justices said, in effect. With a bit of camouflage, you can achieve the same ends. Take a leaf from Michigan's law school book.

And thus, it is Justice Sandra Day O'Connor's opinion for a majority of five in the Grutter law school case that makes the decisions historic. That opinion endorses the use of racial double standards in admissions on the grounds that the school's commitment to "diversity" justifies them. For obvious historical reasons, treating people differently on the basis of their racial identity has long been considered deeply suspect in American constitutional law. No longer. The need for "diverse" institutions evidently trumps the cost of judging individuals by the color of their skin.

The fact that Michigan's law school engages in racial double standards cannot seriously be doubted. A white or Asian applicant with, say, an LSAT score of 165 and a grade-point average of 3.25 to 3.49 has only about a 20% chance of getting in. But precisely the same academic profile guarantees admission for a non-Asian minority student. The law school itself has acknowledged that three out of four students from "underrepresented" minorities would not be admitted if race were left out of the equation. Similar glaring disparities in qualifications can be found at every law school.

Of course many non-Asian minority students do not need racial preferences to get into selective schools. But those preferences are necessary, the court said, to create a "critical mass" of blacks, Latinos and Native Americans.

What is a critical mass? Critical mass, the director of admissions helpfully explained, means "meaningful numbers" or "meaningful representation." Other administrators came up with slightly more illuminating answers. The law school dean was concerned that "underrepresented" minority students not feel "isolated." Translation: We need to make sure the number of black students is sufficient to allow black student organizations, black study groups and so forth. And in many colleges, that critical mass also allows separate dorms, freshman orientations and graduation celebrations. In other words, a school's commitment to "diversity" is essential to the self-segregation so prevalent in institutions of higher education.

The court (ignoring the self-segregation apparent on almost every campus) talks about the "educational benefits" that "diversity" brings. "Being a racial minority" is a "unique experience." The statement comes awfully close to saying that all Latinos think alike and whites need to hear the "Latino" point of view. In any case, O'Connor offers no evidence of any actual "educational benefits," and Justice Clarence Thomas is surely right to say that the law school's primary interest is "aesthetic." The school, he wrote, "wants to have a certain appearance, from the shape of the desks and tables in its classrooms to the color of the students sitting at them."

Race has been called the "American dilemma." It is, in fact, the American undoing -- the ground on which we lose our footing, the problem that plays havoc with bedrock American values. Racial classifications in the United States have a long and ugly history; racial subordination was all about double standards, with different entitlements depending on your racial identity. Nevertheless, the highest court in the land has now embraced them. It is a bleak day in American constitutional law.

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