Affirmative action

Opponents of state ballot initiatives that outlaw race and gender based affirmative action programs have vowed to take their fight all the way to the U.S. Supreme Court. Ward Connerly, the former University of California Regent who was the galvanizing influence behind Proposition 209, which amended that state’s constitution to prohibit preferential policies, would welcome that challenge.

YEARS AGO, once colleges and universities had decided to make race and ethnicity "a factor" in their admissions, many of them cast about for additional ways to advance educational opportunity for minorities. So they came up with scholarship and financial aid programs, freshmen orientation programs, and academic-enrichment programs, to name the most prominent. And they made sure that the programs were, as the lawyers say, racially and ethnically exclusive. Only minorities were eligible.

ON OCTOBER 7, Californians will be offered more than a chance to pick a new governor. They will be asked whether they want to amend the state's constitution to outlaw most public classifications by race. Under Proposition 54--known as the Racial Privacy Initiative to its backers, and as CRECNO (the Classification by Race, Ethnicity, Color, or National Origin Initiative) to the ballot attorneys--the state could not require racial or ethnic information from those applying to college or seeking a job or a loan.

IN A JULY LETTER to colleges and universities across the country, Gerald Reynolds, head of the Education Department's Office for Civil Rights, addressed "a subject," as he put it, "of central importance to our government, our heritage of freedom and our way of life: the First Amendment." Reynolds' office doesn't have the authority to bring lawsuits to enforce the First Amendment. What, you might wonder, possessed him to write a letter about it?

The answer begins with the fact that hundreds of colleges and universities have policies restricting speech that the First Amendment protects.

Boss Dingell and the Outside Agitator

Ward Connerly sure knows how to get under John Dingell's skin. The point man in passing California's Proposition 209 in 1996, Connerly is supporting a Michigan initiative that would similarly ban race preferences in state hiring and university admissions. This provoked Michigan's famously bullying congressman into writing an astonishing letter that suggests Dingell would be right at home in the Democratic party of George Wallace, circa 1963.

SOON AFTER the Supreme Court wrapped up its work this year, no fewer than five of the justices left for Europe. Most of them will spend several weeks there. They like it there. Europe, in fact, is where most justices tend to spend their summers, attending legal conferences and seminars in cities of ancient charm and high culture. This year, the schedules of the justices include Florence, Paris and Salzburg.

It sure beats Chillicothe (Ohio), Danville (Virginia) and Lubbock (Texas), someone (a justice abroad) might think.

THE BIG HEADLINE in the Michigan affirmative action cases is that the Supreme Court, in an opinion written by Justice Sandra Day O'Connor, sustained the use of race in admissions policies. Less publicized is the fact that the court also held, near the end of its ruling in the law school case, that such policies "must be limited in time." If you ask who is to make sure the policies are "limited in time," the court doesn't answer that. But once you consider the way federal law enforcement works, it is apparent the administration could play a vital role in bringing preferences to an end.

BACK IN THE LATE 1980S, several of my Yale Law School classmates and I launched into yet another earnest and well-meaning discussion about racial diversity.

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.

WHILE THE NATION AWAITS the Supreme Court's rulings in the Michigan affirmative action cases, the Bush administration has launched an effort designed to stimulate interest in race-neutral means of enhancing educational opportunities for racial and ethnic minorities. The project has proceeded quietly, with the Education Department taking the lead.

THE MICHIGAN AFFIRMATIVE action cases, which the Supreme Court will hear on April 1, have attracted more than 100 friend-of-the-court briefs, a record number. The overwhelming majority of these amicus curiae filings support the university. Among the signatories are more than 300 organizations, including scores of elite educational institutions and some of the nation's most prominent corporations, as well as foundations and professional associations. A small army of retired military officers, many of them well known, like Norman Schwarzkopf, have signed one brief.