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Jewish World Review July 15, 2003 / 15 Tamuz, 5763

Nat Hentoff

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O'Connor's huge Constitutional error | In a lead editorial celebrating Justice Sandra Day O'Connor's enshrining diversity in affirmative action as constitutional for at least another generation, The New York Times exulted that the Supreme Court's 5-4 majority "by endorsing the consideration of race, but barring quotas and rigid formulas, essentially ratified an existing national consensus."

In actual fact, the University of Michigan law school's case, Grutter v. Bollinger -- decided by O'Connor -- involved a clear quota system. But this "smoking gun" has been ignored in nearly all the extensive media coverage.

Surprisingly, O'Connor did not specifically mention all the findings of fact by Federal District Court Judge Bernard Friedman when he declared the law school's admission policy unconstitutional in the lower court.

Surely, O'Connor read Friedman's decision, because the petitioner, Barbara Grutter, detailed it in the principal amicus brief to the Supreme Court. Her lawyer, Kirk Kolbo, in conjunction with the Center for Individual Rights, cited from the University of Michigan's own submissions to the district court that:

"The law school has an unwritten policy of constituting each entering class so that at least 10 to 12 percent are students from underrepresented minority groups (making the current admissions policy) practically indistinguishable from a quota system."

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The preferential quota applies to blacks, Hispanics and mainland Puerto Rican applicants. But O'Connor nonetheless ruled that, in the law school case, the admissions process was "holistic and individualized." Therefore, she said, it is free from the mechanistic, quota-like policy in the University of Michigan's undergraduate schools (Gratz v. Bollinger), which the Supreme Court on the same day declared unconstitutional because that process gave black applicants, for example, 20 points on a scale of 150 just for being black.

However, the law school -- as reported by Jacques Steinberg in the Feb. 2 New York Times -- "accepted only one of the 61 Asian-Americans, or 2 percent, who were ranked in the middle range of the applicant pool, as defined by their grades and test scores, according to court filings. The admissions rate for whites, with similar grades and scores, was 3 percent.

"But among black applicants with similar transcripts, 22 out of 27, or 81 percent were offered admissions."

Affirmative action proponents have applauded O'Connor for upholding and strengthening the deciding vote for her mentor, Justice Lewis Powell, in the 1978 Bakke case -- the court's first ruling on affirmative action in college admissions.

But in that very decision, Powell, while supporting a "plus factor" for black applicants, emphasized that, to be constitutional, there cannot be "a specific percentage of the student body ... in effect guaranteed to be members of selected ethnic groups." Race can be a factor, he said, but only among many other factors -- not the deciding factor.

The precedent rejecting quotas, which Powell tried to set in Bakke, was underlined in Friedman's federal district court decision (overruled by O'Connor) in Grutter v. Bollinger: "The reservation of some seats for applicants of particular races," said Friedman, "and the attendant lack of competition for those seats, was the principle reason Powell found (University of California at Davis Medical School's) quota system unconstitutional" in Bakke.

Furthermore, was this distorted majority decision by O'Connor, as The New York Times claims, the ratification of "an existing national consensus"?

The July 7 edition of Newsweek provided a necessary correction to The New York Times, writing that "most Americans say they favor 'affirmative action' and oppose 'quotas' -- both loaded terms. But asked more neutrally whether they approve 'racial preferences,' the answer from both blacks and whites is overwhelmingly 'no.'" If you want more proof: A Gallup Poll in June revealed that 69 percent of Americans want applicants admitted solely on merit.

Newsweek adds the obvious point -- missed by nearly all the media -- that the University of Michigan law school "affords a clear racial preference." The point is also cited by Stuart Taylor, a former New York Times Supreme Court reporter, in the June 30 Legal Times.

In Bakke, Powell wrote that "the guarantee of equal protection (of the laws) cannot mean one thing when applied to one individual and something else when applied to a person of another color. If both are not accorded the same protection, then it is not equal."

In overruling her mentor, Sandra Day O'Connor has turned "equal protection" of the laws upside-down, but for many, that's politically correct.

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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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