Jewish World Review Feb. 28, 2003 / 26 Adar I, 5763

Zev Chafets

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How prez could further racial pluralism but end affirnative action | On April 1, the Supreme Court will hear arguments on whether my alma mater, the University of Michigan, is justified in giving preferential treatment to minority applicants. The court's decision will determine the fate of affirmative-action programs all across the country.

New York State is on the University of Michigan's side. Eliot Spitzer is one of more than 20 state attorneys general who have filed a friend-of-the-court brief on behalf of the University of Michigan's policy.

The New York City Council supports Michigan, too. So do dozens of major American corporations, from Coca-Cola to General Mills. Also a myriad of distinguished Americans, from Sen. Hillary Clinton to retired Gen. Norman Schwarzkopf.

Arrayed against them is President Bush, who opposes racial preferences.

I predict a win for the White House.

The last time the Supreme Court dealt with this issue was in the 1978 Bakke case. In a split and convoluted decision, the court ruled that quotas are unconstitutional. But it permitted affirmative-action admissions anyway on grounds that have narrowed down over the years to the premise that such a policy enhances the educational experience of the general student body.

This has proven to be a very bad rationale. For one thing, it falsely assumes that students will be automatically and fundamentally different simply because of their race. It also implies that the value of minority students is primarily as a tool of cultural enrichment for the majority - a proposition that is both insulting and, given the high degree of racial self-segregation on most campuses, dubious.

Michigan knows it can't defend its current policy, which gives minority applicants a huge advantage, on such mushy legal ground. So it is preparing a different argument: Racial diversity is a "compelling state interest" because America needs a university-trained work force that has been habituated to integration.

There is considerable real-world merit to this view. But even if the court accepts its ends-based premise, it still may have a problem with the means by which it is achieved.

The University of Michigan and its supporters believe the only way to get a genuinely integrated campus is through a racially selective admissions procedure.

But many realize that the Supreme Court is likely to rule such a policy unconstitutional.

The court is less liberal than it was in 1978. So is public opinion, which shouldn't be, but inevitably is, a factor in the court's decisions on highly emotional issues. According to a Newsweek poll taken in January, more than two-thirds of Americans oppose granting preferential admission to universities on the basis of race or ethnicity.

Enter Bush. He, too, opposes racial preferences. But he favors diversity as an outcome and offers a way to achieve it. His so-called Texas Plan requires state universities to accept the top 10% of every high school graduating class in their state.

Granted, this won't help minority students who attend integrated high schools or do much for applicants to private or nationally selective public universities. But it does get around the problem of public institutions discriminating on the basis of blatantly racial criteria, and it could, for that reason, appeal to the Supreme Court.

If so, it would open the way to a nice irony: George W. Bush - the man Jesse Jackson calls "the most anti-civil-rights President in the last 50 years" - could go down in history as the 21st century savior of campus racial pluralism.

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JWR contributor Zev Chafets is a columnist for The New York Daily News. Comment by clicking here.

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