Jewish World Review Jan. 22, 2003 / 19 Shevat, 5763

Edward Blum

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Can race be one factor among others in college admissions?


http://www.NewsAndOpinion.com | One day after the Bush administration submitted a friend of the court brief to the US Supreme Court in the Univ. of Michigan affirmative action case, National Security Advisor Condoleeza Rice decided to add a public postscript to it by issuing a personal clarifying statement. Apparently with the president's permission, Rice's press release drew a clear distinction between the brief's narrow scope and her own individual opinion: "I believe that while race-neutral means are preferable, it is appropriate to use race as one factor among others in achieving a diverse student body."

If conservatives were grumbling about the brief's artful dodge of the central questions before the Supreme Court before the Rice statement, many simply went ballistic with the new addendum. Not only does this statement endorse, in essence, what the Univ. of Michigan has been arguing since the very beginning of this lawsuit, its timing may appear to many---especially the Justices of the Supreme Court who also read newspapers---that the President's view are actually closer to Condi Rice's than say, Solicitor General Ted Olson's. One can only speculate if the president would have allowed Mr. Olson the opportunity to share with the nation his own personal views of this issue the day after he filed the administration's brief with the high court.

In any event, not only is the timing of Rice's statement distressing, but, more importantly, her belief that race can be "one of many factors" should send chills down the spine of anyone who cherishes the original meaning of the 1964 Civil Rights Act.

Simply put, Rice's argument that race can be one of many other factors in college admissions is irreconcilably flawed because it opens other public policy areas to the same legal logic. For instance, if race can be one factor of many in deciding which students will be admitted or rejected from a university, then why can't race be one factor among others in selecting jurors to hear a capital murder trial? And in case your wondering if that's allowed in the jury selection process---it's emphatically not.

At its very foundation, the argument that race can be one factor among many in college admissions assumes that all black students are somehow interchangeable and share common backgrounds, experiences, and outlooks. Any black student---or Hispanic and Asian, for that matter---in a college classroom will bring a "black" perspective to the discussion and the learning experience---it doesn't matter if he or she attended an impoverished inner-city high school or a chic prep school---black skin creates diversity.

It is no wonder so many of us are exasperated about the issue of race: most ordinary Americans don't know if race is supposed to be something we pay attention to in our everyday lives, or something we are suppose to ignore. And regardless of how public figures try to argue for both sides, the ambivalence hasn't worked for the last 25 years.

Consider this: If race can be one factor among many in college admissions, can race be one factor among many during the sentencing phase of a criminal trial? Blacks statistically have higher recidivism rates than whites. How about police profiling to prevent crime? Can race be one factor among others the police consider in whether to pull over a suspicious driver? Can race be one factor among others used by life insurance underwriters in assessing the risk of a life insurance applicant? Mortality rates for blacks are higher than whites.

From these real-life situations, it is a short hop to "can race be just one reason among many for a restaurant owner to refuse service to a groups of somewhat rowdy teenagers, who just happen to be black?" See where this can go?

Since the muddled Supreme Court decision in Bakke a quarter century ago, our institutions of higher learning have grappled with the "if, when and how much" race can be used to admit or reject applicants. If the high court takes the advice of those like Condoleeza Rice, and, worse, that of Colin Powell, and adopts the "one-factor-among-many" approach to school admissions, they invite another 25 years of racial confusion, polarization and recriminations, to say nothing of litigation. Our nation doesn't deserve this from the highest court in the land. Either race tells us something significant about an individual, or it doesn't. It can't be both.


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Edward Blum is director of legal affairs at the American Civil Rights Institute. Comment by clicking here.

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© 2003, Edward Blum