Jewish World Review Feb. 12, 2003 / 10 Adar I, 5763

Edward Blum

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High Court may decide not to decide | If you think the nation is about to get some legal finality about "affirmative action" in college admissions, think again. Even though the U.S. Supreme Court will consider the issue later this spring when it hears two cases from the Univ. of Michigan, the ideological split that currently exists between the justices on the high court may keep the matter in limbo for another generation.

The central issue now before the Court in the Univ. of Michigan cases is whether a school's desire to have a racially diverse student body permits it to classify applicants by race and ethnicity, and furthermore, grant them certain racial or ethnic group admission preferences. It is not surprising that virtually no one in the elite higher education community believes this practice to be unfair. They are relying on the muddled 1978 Supreme Court decision in the case of Bakke vs. Regents of the Univ. of California which they have interpreted allows them to use race as a "plus factor" in creating a diverse campus.

The reasons Bakke remains muddled is because Justice Lewis Powell authored a unique opinion in the case that specified race could be a "plus factor" to ensure diversity in university admissions. However, no other justice signed on to his view.

So, the case was finally decided on whether the UC-Davis medical school used illegal "quotas" instead of minor "plus factors" to excluded applicant Allan Bakke. Since Powell concurred with four other justices that the medical school's admissions system was indeed a quota, Mr. Bakke won the case and was eventually admitted.

But the bigger legal question still remains: Can race be used as a "plus factor" as long as it doesn't drift into a hard and fast "quota," or must race be excluded from all admissions considerations? So far, the lower court legal opinions are split.

The U.S. 5th Circuit Court of Appeals has ruled no race considerations are permitted, while the U.S. 9th Circuit Court of Appeals has ruled the opposite.

So when the identical question arose at the Univ. of Michigan law school and undergraduate program, no one was surprised the high court agreed to settle the dispute. Oral arguments are scheduled on April 1.

As a result, one could assume a final ruling is just around the corner and once and for all, our nation's colleges and universities will know whether they are permitted to consider an applicant's color or heritage when considering them for a university program. Right?

Wrong. Don't make that assumption.

Some Court observers have speculated that Justice Sandra Day O'Connor, the pivotal vote in most race cases, is unlikely to make colleges and universities embrace colorblind admissions standards because she doesn't believe America is ready to abandon the significance of race in our national lives.

Consider this scenario: The Supreme Court could rule that the white applicants who were denied admission to the Univ. of Michigan were victims of improper quotas and, just as they did in Bakke, never get to the central question concerning the use of race. This stalemate could arise if Justice O'Connor concludes she doesn't want to be the justice that ends "diversity" in higher education. Like Powell, the swing-voter of his day, O'Connor may decide this case "narrowly"---that is, she may join with the four other center-right justices in striking down the disputed practices at UM as quotas, but not agree with them that race should be abandoned altogether.

Furthermore, she probably won't agree with the four center-left justices who will likely argue that race and ethnicity, like athletic ability or economic status, can be one element among many in determining who will be admitted to a college program.

If this case does indeed play out this way, the nation will sadly remain stuck in racial limbo for another quarter century.

It shouldn't be this way for two critically important reasons. First, colleges and universities need closure on the issue, but second, and more importantly, our society has reached the point where we are truly ready for colorblind public policies. Just as most of America was ready in 1954 for the Brown vs. Board decision that ended the "separate but equal" treatment of blacks, our society is ready to end the use of race in all aspects of public life altogether.

Whenever government policies permit the use of race in one setting, yet prohibit it in another, it is no surprise confusion and exasperation in the courts, not to mention the citizenry, inevitably follows. For example, if race can be used in college admissions, then why not use it in police profiling or jury selection?

It's time for the Supreme Court to put the notion of race behind us. Removing race as an element in our public lives won't be without some anguish, just as it was in 1954. But our country is ready for the challenge. We have overcome much greater ones.

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


target="_self">12/20/02:Can race be one factor among others in college admissions? 12/20/02: Boobus Mississippius

© 2003, Edward Blum