"Senator Trent Lott's lament that Strom Thurmond lost his segregationist campaign for the White House in 1948 . . . is already influencing an internal Bush administration debate on what approach to take on a major affirmative action case.

"Perhaps most striking, a senior administration official said today that Mr. Lott's statement of support for affirmative action . . . has complicated a developing debate within the administration over a coming Supreme Court case. . . .

"The official said an internal debate had already developed over what position the administration should take in an appeal involving the University of Michigan's affirmative action programs.

"'The Lott business has been like a powerful magnet distorting the debate on this,' the official said."

--New York Times, December 19, 2002

DISTORTING THE DEBATE? How so? The only ways we can think of would be bad. The Michigan cases offer an especially timely opportunity for the Bush administration to take a stand in favor of nondiscrimination and equality of treatment. But "the Lott business," which may not be over just because the majority leader has resigned his position, may be influencing the administration to move in the wrong direction.

In the University of Michigan cases about to be heard by the Supreme Court--Grutter v. Bollinger and Gratz v. Bollinger, which respectively challenge the race-conscious admissions policy at the law school and at the undergraduate level--the government isn't a party. So if the administration enters the cases at all, it must do so as an amicus curiae, or friend of the court. Thus the choices before the White House are: Don't file at all, file in support of Michigan, or file in support of the plaintiffs. If it supports the plaintiffs, the administration can make either a timid or a full-throated argument. The former would indulge discriminatory admissions. The latter would ask that the discrimination end, now.

The right choice is to join the plaintiffs and make a full-throated argument against race discrimination. But all the wrong choices are not equally bad.

Here let us pause to introduce essential facts and the key legal issue. The undergraduate school gives applicants "points," with 100 (out of a possible 150) usually enough to establish admission. A perfect SAT score, for instance, will net you 12 points. Being African American, Hispanic, or American Indian is worth 20 points. Awarding those (and only those) minorities 20 points on account of their skin color or country of origin has been deemed necessary to keep their enrollment at more or less the same level as under the old quota system abandoned in 1998 (after it became public knowledge).

The law school similarly favors applicants from these three groups. It gives such weight to race and ethnicity that the odds of admission for minority students are far greater than for non-minority students with similar academic records. The point of the weighting is to guarantee each class a "critical mass" of minority students--at least 10 percent.

The main legal issue is the same in both cases. The equal protection clause of the Fourteenth Amendment says that no state shall "deny to any person within its jurisdiction the equal protection of the laws." The Michigan schools, of course, are state schools. The question before the Court is whether the schools' use of race in deciding which students to admit violates the equal protection guarantee. The test the Court has elaborated to answer such a question is whether the use of race is "narrowly tailored" to achieve a "compelling interest." In other words, you must have very good reasons for using race, and there must be no other way to achieve your goals except by its very careful, indeed surgical, use.

Now, we can well imagine there are administration officials wanting to sit on the sidelines, so as to avoid being pulled into the Lott firestorm. But sitting out this case would be odd, not to say cowardly, since so far as we can tell no administration (whether Republican or Democratic) has ever failed to file a brief in an affirmative action case being reviewed by the Supreme Court. That said, it would be better to stay out than to get in and merely argue such technicalities as whether or not the university's use of race is "narrowly tailored."

It is certainly possible to approach the Michigan cases in such terms, while dodging the larger constitutional issue. Some of the judges in the litigation have done just that. Uses of race are almost always loosely tailored, if tailored at all, and Michigan's policies share that problem. But the difficulty with arguing for better tailoring is that the argument is almost never imaginative enough to confront all the ways those determined to use race will try to do so. The argument is too weak an instrument to put a halt to discriminatory admissions.

There is a practical point here as well. The current Court, when it agrees to hear a controversial case at all, tends to address the big issue at stake. It's hard to believe the justices agreed to hear the Michigan cases merely to write an opinion about the fine points of "narrow tailoring" and leave untouched Michigan's justification for its use of race in the first place--its "compelling interest" in student body diversity. After all, it is the pursuit of "diversity" that has produced Michigan's discriminatory admissions. And Michigan is hardly an isolated case. Schools throughout the country likewise invoke diversity to justify their racial classifications. Which means that diversity-based admissions is a national issue. Indeed, it has been litigated in no fewer than four federal circuits, and those courts are in sharp disagreement. For the administration to get into the Michigan case and fail to address the diversity rationale would be a waste of its time as well as the Court's.

Even so, we can imagine administration officials, influenced by the Lott business, contending that, well, if we must oppose the Michigan policies, we had better do so in a way that won't allow us to be accused of being racists--and a narrow-tailoring brief is thus the one we should file. But there's no appeasing demagogues. For race-mongering Democrats now looking for Republicans to intimidate, any kind of brief is likely to draw accusations of racism.

Make that, almost any kind of brief. Is it conceivable that the Lott business has so distorted the internal debate that some administration officials might actually be considering putting in a brief in behalf of Michigan and its diversity rationale? If that's what the administration winds up doing, the race intimidators will indeed have triumphed. It's hard to believe the president would reverse his stated position opposing diversity admissions, and we like to think that a pro-diversity brief would be rejected out of hand, on principle.

We come, then, to what the administration should do: File a brief opposing the diversity rationale. Its flaws are apparent. The claim made for diversity is empirical, not one of principle. It says that education is improved by interracial conversations and comments that occur randomly, inside and outside the classroom. This claim has been subject to vigorous debate, so much so that you wonder how it can be considered sufficiently "compelling" to justify discrimination. At the heart of the rationale is a racialist assumption, actually stated in Justice Powell's pro-diversity opinion in the landmark Bakke case (1978), that minorities bring to a campus "something that a white person cannot offer." This rationale wrongly sees individuals as fungible members of their racial groups (or the groups to which admissions officers assign them). In addition, the rationale confides to school officials discretion to say which racial and ethnic groups should be favored--and disfavored--in the pursuit of diversity, and by how much or by how little. Diversity regulation may even mean discriminating against those you would expect to be favored. In the Piscataway case several years ago, the Clinton administration acknowledged (approvingly) that the diversity rationale may be used to justify discrimination against blacks. Diversity-based discrimination, by the way, is never-ending, simply because it contains no principle by which it might be ended. For always it will be possible to say that there are both "underrepresented" and "overrepresented" groups.

Yes, a brief arguing against diversity would be the one most intensely criticized by the race demagogues. If the internal debate shifts in favor of such a brief, we can imagine some inside the administration arguing strenuously in favor of just sitting the whole thing out. That would be a purely political argument. But it would fail to recognize the political opportunity--for party and principle--that Michigan affords.

The country has now gone through two weeks during which no one in a position of elected leadership in the Republican party has really stood up for the party's core principle, even as Trent Lott has made a fool of himself. Lott's remarkable achievement was to have, within ten days, commented in favor of segregation and then also in favor of "across the board" affirmative action--positions that would have qualified him as a Democrat in good standing both in 1948 and 2002. (Indeed, Lott's ultimate reparative act might have been to switch parties.) By filing a brief against diversity, the administration could reaffirm the Republican party's and indeed the nation's best principles. By coming down on the side of nondiscrimination and equal treatment, the administration would state that in America both hostile and "benign" racial classifications are presumptively wrong, and for the same reason: They violate the right of the individual to be treated without regard to race.

--Terry Eastland, for the Editors

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