UPON LEARNING that the Supreme Court had accepted the big affirmative action cases involving her campus, University of Michigan president Mary Sue Coleman said about the only thing that she could, which was that "we are looking forward to presenting our cases." Ms. Coleman's--and Michigan's--problem is the law, and the law tilts pretty plainly against the school's race-conscious admissions policies.
Before the court are lawsuits challenging the policies used by the undergraduate and law schools. The undergraduate school awards applicants "points," with 100 (out of a possible 150) sufficing for admission. A perfect SAT score, for example, will net an applicant 12 points. Being African-American, Hispanic, or American Indian is worth 20 points (a number calculated to ensure more or less the same number of minority admissions as had been achieved under a quota system abandoned in 1998 after it became public knowledge).
The law school targets applicants from the same three groups. It doesn't give points but weights race and ethnicity to such an extent that the odds of admission for the minority students are hundreds of times greater than those for all other students with similar academic credentials. The purpose of so weighting by race is to ensure in each class what administrators call a "critical mass" of minority students--at least 10 percent.
Michigan proclaims that its policies aren't quota systems, that they merely "consider" race and ethnicity. But the policies produce numbers similar to those a quota system would yield.
Legally speaking, Michigan has a 14th Amendment problem. No state, says that famous amendment, shall "deny to any person within its jurisdiction the equal protection of the laws." A five-justice majority, with Sandra Day O'Connor writing the critical opinions, has built a body of law insisting that there are not two equal protection clauses--one for minorities and one for non-minorities--but just one. And it protects people of all races and ethnic backgrounds, using the same standards.
Michigan, however, has established racial classifications that prevent applicants lacking the necessary racial status from receiving the same consideration accorded those who possess it. For its admissions policies to survive the O'Connor majority, Michigan must persuade the justices that its use of race serves a "compelling interest." Michigan offers "diversity" as its (one and only) compelling interest. It argues: Only by taking race into account (awarding points for race, weighting by race) can we create a diverse student body of educational benefit to everyone.
Will the O'Connor majority buy that? It's doubtful. That majority is wary of, as Justice O'Connor has put it, "race-based decisionmaking essentially limitless in scope and duration." And race-based decisionmaking grounded in diversity would be limitless in precisely those ways.
Changing demographics mean that groups favored today may be disfavored tomorrow. (As has happened with Asian-Americans.) New "critical masses" may need to be achieved. Affirmative action justified by diversity is unending, simply because there is no reason that it should end.
The other problem Michigan faces is Title VI of the Civil Rights Act of 1964, which provides that "no person . . . shall on the ground of race, color, or national origin be subjected to discrimination under any program or activity receiving federal financial assistance."
Commentary on the Michigan cases has centered on the Constitution and not Title VI. And yet Title VI applies. It makes no exceptions (and certainly not for "diversity") to its nondiscrimination command. And note this: In the landmark Bakke case of 1978--the first and only time the court spoke to affirmative action in higher education--Justice John Paul Stevens, commonly regarded as a judicial liberal, invoked Title VI to nullify a race-based policy.
It is hardly unthinkable that as many as six justices might vote against Michigan. And maybe more: Justices David Souter, Ruth Bader Ginsburg, and Stephen Breyer see themselves as stout defenders of both equal protection and the laws of Congress.
Supporters of Michigan say the court will be guilty of activism if it strikes down the challenged policies. Not so. The law is what it is. If people don't like it, they can of course try to change it. The justices, however, will be derelict in their duty if they fail to apply it--and rewrite it instead.
Terry Eastland is publisher of The Weekly Standard.