by John M. Curtis
(310) 204-8700

Copyright June 24, 2003
All Rights Reserved.

utting the 14th Amendment in mothballs, the Supreme Court [5-4] ruled to uphold the University of Michigan Law School's ambiguous affirmative action policy, confirming the right of higher education to use subjective race-based preferences. Striking down the University of Michigan's 20-point quota system for "underrepresented minorities," the justices voted [6-3] to end Michigan's egregious practice of reverse discrimination. While the court's second ruling was no surprise, the first ruling legalizes reverse discrimination as long as it doesn't involve a point system. Bowing to political correctness, the High Court gave a green light to public and private academic institutions to use race as a factor in the admissions process. Despite California's Proposition 209 currently outlawing affirmative action, the ruling opens the door to race-based preferences and reverse discrimination.

    :  Since passing former U.C. Regent Ward Connerly's Prop. 209 in 1997, University of California has engaged in de facto affirmative action, using race as a part of applicants' "in-depth" or "background" profile. Though the White House strongly opposed both University of Michigan practices, President Bush signaled a change of heart. Bush praised the court "for recognizing the value of diversity on our nation's campuses. Today's decisions seek a careful balance between the goal of campus diversity and the fundamental principle of equal treatment under the law," mirroring the majority opinion written by Justice Sandra Day O'Connor, underscoring the government's compelling interest in achieving diversity on college campuses. Trashing the 14th Amendment, you can't protect non-minority applicants from reverse discrimination by encouraging race-based preferences.

    :  Striking down race-based point systems, yet approving a subjective system, the High Court, in effect, gutted Bakke vs. U.C. Regents, a case banning reverse discrimination. You can't affirm Bakke by instituting new murky ways race can infiltrate the admissions process. Rejecting "mechanized selection" but approving subjective selection is fundamentally inconsistent, despite distinctions leading to cynical evasions of current laws banning affirmative action. Any minority applicant can now expect race to be a favorable factor in the selection process. Using "race conscious" admissions policies invites the same type of discrimination seen in quota systems. "Today we endorse Justice Powell's view that student body diversity is a compelling state interest that can justify the use of race in university admissions," said O'Connor, essentially ignoring Bakke vs. U.C. Regents.

    :  No reasonable interpretation of the High Court's ruling can ignore the potential of injecting race into the admission's process. "We agree . . . our country's most selective institutions must remain both diverse and selective," said O'Connor, increasing the bar of non-minority applicants for whom even perfection isn't good enough. Making distinctions between "race-conscious" admissions and "race-based preferences," sounds like splitting hairs when reverse discrimination violates the 14th Amendment [equal protection] rights of non-minority applications, already victimized by reverse discrimination at many public universities. O'Connor admits that someday the country should revert to a "race neutral admissions policy," when sufficient diversity exists, whatever that means. Whether it's next year or next century, the Supreme Court should refrain from the type of social engineering better left to philosophers and sociologists.

    :  Chief Justice William Rehnquist, writing for the minority, called O'Connor's opinion "a naked effort to achieve racial balancing," something blatantly obvious when O'Connor talked about creating a "critical mass" of minority students. Meritocracies, like the United States, aren't built on tinkering with bell-shaped curves, allowing competition to determine who makes it to the top. There are no racial preferences when it comes to performing brain surgery or working on the space shuttle. Giving subjective or objective preferences to level the playing field boomerangs by pushing qualified applicants out of a fair selection process. Civil rights groups talk about broken homes, rundown neighborhoods and deteriorated schools, but simultaneously rail against school vouchers, enabling low-income families access to private schools. O'Connor is in fantasyland about ending race-based preferences in the distant future.

    :  Voting to permit subjective race-based preferences, the Supreme Court gutted Bakke vs. U.C. Regents, giving a modicum of protection against reverse discrimination. By allowing subjective race-based preferences, non-minority applicants are put into a precarious situation, competing with applicants with added leverage. "This is a historic day for the achievement of civil rights," said Wade Henderson, director of the Leadership Conference on Civil Rights, ready to trample the constitutional and civil rights of non-minority applicants. Upholding the use of race in university admissions, the Supreme Court hurts the already bitter racial divide now compromising non-minority students. What happens to Justice O'Connor's argument when today's minorities become tomorrow's majorities in several key states? With demographics rapidly changing, the High Court's ruling sends the wrong message.

About The Author

John M. Curtis writes politically neutral commentary analyzing spin in national and global news. He's editor of OnlineColumnit.com and author of Dodging The Bullet and Operation Charisma.

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