Jewish World Review June 25, 2003 / 25 Sivan, 5763

Terry Eastland

JWR's Pundits
World Editorial
Cartoon Showcase

Mallard Fillmore

Michael Barone
Mona Charen
Linda Chavez
Ann Coulter
Greg Crosby
Larry Elder
Don Feder
Suzanne Fields
James Glassman
Paul Greenberg
Bob Greene
Betsy Hart
Nat Hentoff
David Horowitz
Marianne Jennings
Michael Kelly
Mort Kondracke
Ch. Krauthammer
Lawrence Kudlow
Dr. Laura
John Leo
Michelle Malkin
Jackie Mason
Chris Matthews
Michael Medved
Kathleen Parker
Wes Pruden
Sam Schulman
Amity Shlaes
Roger Simon
Tony Snow
Thomas Sowell
Cal Thomas
Jonathan S. Tobin
Ben Wattenberg
George Will
Bruce Williams
Walter Williams
Mort Zuckerman

Consumer Reports

Court's law school ruling isn't persuasive | In the Michigan affirmative action cases, the Supreme Court upheld a race-based admissions policy used by the law school while striking down the one used by the undergraduate school. The court's decisions aren't of equal weight. The more important one involved the law school. It was a 5-to-4 decision, with Justice Sandra Day O'Connor writing for the court. But her opinion, though now the law of the land, is unpersuasive.

Consider her treatment of "diversity." For a governmental use of race to pass muster with the court, it must be "narrowly tailored" to achieve a "compelling interest." Twenty-five years ago in the landmark Bakke case - the last time the court addressed affirmative action in higher education - Justice Lewis Powell stated that diversity sufficed as just such a compelling interest.

But Justice Powell said that in an opinion joined by no other justices, and though higher educators have regarded it with the same respect as a majority opinion, its status with the present court was unknown - until Monday, when Justice O'Connor endorsed it.

Justice O'Connor observes there is "some language" in "our affirmative action cases since Bakke" that "might be read to suggest that remedying past discrimination is the only permissible justification for race-based governmental action." But rather than engage the merits of the arguments expressed in that "language," most of which Justice O'Connor herself wrote, she concludes: "We have never held that the only governmental use of race that can survive [our analysis] is remedying past discrimination. ... Today we hold that the law school has a compelling interest in attaining a diverse student body."

Justice O'Connor defers to "the law school's educational judgment that such diversity is essential to its educational mission." She ignores the debate over the rationale that has left even some defenders of Michigan convinced, as The Wall Street Journal reported last week, of its flaws and "weak social science." Nor does she examine why, as one black Michigan student told The Journal, diversity has become "offensive to students of color. [It is] as if we're just in college to enrich the education of white students."

Donate to JWR

In her discussion of "narrow tailoring," Justice O'Connor emphasizes the unconstitutionality of a "mechanical, predetermined diversity 'bonus' based on race or ethnicity" - precisely the infirmity found by a six-justice majority in the undergraduate case. She also says a quota would be unconstitutional. Yet she accepts the law school's effort to enroll a "critical mass" of minorities (blacks, Hispanics and American Indians) without engaging the powerful point made by Chief Justice William Rehnquist in dissent - that the school actually accords "substantially different treatment" to the three minority groups.

Indeed, Chief Justice Rehnquist makes a strong prima facie for discrimination against Hispanic applicants. "In 2000, 12 Hispanics who scored between a 159-160 on the LSAT and earned a GPA of 3.00 or higher applied for admission, and only two were admittted. ... Meanwhile, 12 African-Americans in the same range of qualifications applied for admission, and all 12 were admitted." Mr. Rehnquist writes that Michigan never explained why Hispanics "should have their admission capped out." Nor does Justice O'Connor. And this is a case fundamentally about the Fourteenth Amendment's equal protection guarantee.

Justice O'Connor rejects the Bush administration's argument that narrow tailoring requires "exhaustion of every conceivable race-neutral alternative" before race actually is used. Yet "we are mindful," she writes, quoting a 1984 case, that "[a] core purpose of the Fourteenth Amendment was to do away with all governmentally imposed discrimination based on race." Recognizing the potential danger of any racial classification, she says that even a lawful policy, like the law school's, "must have a logical end point."

How to get to that point? Justice O'Connor points to states (Texas, Florida and California) that pursue race-neutral alternatives. But she doesn't explain why a state would want to copy those states if, thanks to her opinion, it still can use race in admissions.

Even so, Justice O'Connor is sure about that end point. It has been 25 years since Bakke, and "we expect that 25 years from now, the use of racial preferences will no longer be necessary." The five justices who expect that won't be on the court in 25 years, and it is anyone's guess how that court might view an "end-point" case. But, surely, it is odd that the Constitution means one thing in 2003 and could mean another in 2028 - that it permits discrimination today but not, or might not, tomorrow.

Appreciate this writer's work? Why not sign-up for JWR's daily update. It's free. Just click here.

JWR contributor Terry Eastland is is publisher of The Weekly Standard.Comment by clicking here.

06/24/03: Whatever the Lynch story, everyone wants it
06/18/03: A judge shows he can set aside his strong views
06/04/03: Boston church becomes politically important again
05/28/03: YWCA names culture warrior as its new head
05/23/03: Washington steps in to help teach history
05/13/03: It may take another election to change filibuster rules
05/07/03: Paige works to improve education from inside out
04/30/03: Iraqis have choice to make regarding religious freedom
04/16/03: Is it acceptable for an education secretary to state a personal preference for religious schooling?
04/08/03: University officials must put academics ahead of athletics
04/02/03: Support for our soldiers means support for their orders
03/27/03: 'Free Iraqi Forces' underscore Bush's sincerity
03/18/03: Dems misunderstand judge's job
03/13/03: Justices show right restraint in ruling on anti-crime measures
03/05/03: America's imperial intentions
02/25/03: The weakness of Dems' stated reason for their filibuster makes you wonder whether it is the real reason
02/19/03: Administration fine-tunes religious rights in public education
02/12/03: France and Germany need to be reminded of the necessity of a strong, even predominant America
02/06/03: Judiciary's 'balance' -- or lack of it -- is our doing
01/29/03: The child who almost wasn't
01/21/03: President decides to punt on affirmative action case
01/14/03: Bush's faith has influenced his conduct in public office
01/07/03: Dems need ideas, not more microphones
12/17/02: Gray Lady should learn that times have changed
12/10/02: Will High Court be guilty of activism?
12/03/02: The missing facts in news accounts of Saudi Princess Haifa's putative 'charity'
11/26/02: Americans don't have to be worried about Big Brother
11/19/02: Texas' reputation for flamboyance may be revised
11/11/02: Bush now can repair confirmation system
11/05/02: Dems shouldn't believe too strongly in history
10/30/02: Snipers had lots of motives
10/23/02: No one should be shut out of marketplace of ideas
10/15/02: Open hearings that could imperil the nation
10/08/02: Debating the clear and present danger
10/01/02: A great awakening in China?
09/25/02: Abortion, again? The settled but still unsettling law of Roe v. Wade
09/18/02: A relevant presidency--and irrelevant U.N?
09/10/02: Ashcroft's obtuse judicial statement
09/04/02: The Education Gadfly stings again
08/28/02: So then let the president declare war
08/21/02: Will Bush finally 'fix' affirmative action once and for all?
08/06/02: President must take up cause of Egyptian democracy warrior
07/31/02: With each war, civil liberties are curtailed less

© 2002, Terry Eastland