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Jewish World Review Jan. 2, 2003 / 28 Teves, 5763

Nat Hentoff

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Making affirmative action fair for all | The president can show the whole country that affirmative action need not be synonymous with racial preferences as a deciding factor in college admissions if he orders an opposing legal brief in the crucial University of Michigan racial-preference cases now before the U.S. Supreme Court.

In one of those University Michigan cases -- Gratz v. Bollinger -- every black, Hispanic or American Indian applicant automatically receives a 20-point bonus on a 150-point scale. If a parent of one of these applicants is a well-to-do corporation lawyer, the bonus still applies.

Justice William O. Douglas -- the most liberal and libertarian jurist in the history of the high court -- spoke to me passionately years ago about this kind of affirmative action case. He said that there are students of all races and ethnic backgrounds who grow up in poverty and have other disadvantages, but who demonstrate determination to overcome these obstacles.

Douglas added that -- whether achievers are black, Appalachian whites or students of any extraction -- they merit a "plus" factor in college admissions, even if their SAT scores and grade-point averages are not in the highest percentiles. Douglas emphasized that the Fourteenth Amendment's guarantee of "equal protection of the laws" would apply to affirmative action by class, rather than, for example, to giving 20 extra points to only certain narrow categories of applicants.

But George W. Bush's political advisers, hoping to gain more minority votes in 2004, are urging the president not to oppose the University of Michigan's racial preferences by sending a legal brief to the Supreme Court that would state Bush's support of a much more inclusive, constitutional method. According to the Dec. 18 Washington Post, Solicitor General Ted Olson, Attorney General John Ashcroft and key Department of Education officials are advising the president to declare his opposition to the University of Michigan's approach toward racial targeting.

Meanwhile, the Supreme Court is being told by ardent proponents of affirmative action, as it is now practiced, that overturning racial preferences will -- as University of Michigan President Mary Sue Coleman argues -- "result in the immediate re-segregation of our nation's top universities, both public and private."

This is propaganda.

In California, where racial preferences have been outlawed since 1997, minority enrollment at the University of California's eight competitive undergraduate campuses is now 19 percent, 1 percent higher than in 1997. In Georgia, after a federal court struck down the University of Georgia's race-conscious policy last year, 13 percent of this year's 4,300 freshmen are minorities, a slight increase since the previous system. There is also an increase in Texas after a lower court ended racial preferences.

Fair affirmative action has resulted from college professors and admissions officers being forced, by the rejection of racial preferences, to actually go to primarily minority and white working-class high schools and get involved with teacher training and curriculum changes so students will be prepared for college.

Also, in Texas, the top 10 percent of high school graduates across the state are now guaranteed places in the university system. In California, it's the top 4 percent. Thereby, student achievers in low-income areas, where schools get less resources from the state, and where parents can't afford private tutoring for SAT tests, get a break. The children -- whatever their race -- of waitresses and factory workers aren't left behind by the racial numbers game.

Moreover, in racial-preferences colleges that proclaim the need for "diversity" as a compelling state interest, there are often separate dorms ("identity houses") and separate orientation procedures for minority students. Not surprisingly, these sometimes result in separate graduation ceremonies. Michael Meyers, executive director of the New York Civil Rights Coalition, a former official of the NAACP, calls these practices of separation a "ghettoisation" of those campuses in the name of "diversity."

George Washington University law professor and JWR columnist Jonathan Turley points out that "there is no question that diversity is a vital element in education, including diversity in religion, age, gender and economic background. But when it is artificially engineered, it can undermine the most essential component of the education process: the notion that students will be valued by who they are and not what they represent."

I believe the president knows this, and I hope he acts according to that knowledge, and his belief in "equal protection of the laws" by making advising the Supreme Court to make affirmative action truly inclusive.

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JWR contributor Nat Hentoff is a First Amendment authority and author of numerous books. Send your comments to him by clicking here.

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