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. To the extent it is still possible to speak of an establishment in America, the establishment is standing proudly with Michigan.
Michigan, it turns out, recruited many of these amici. In an interview with the New York Times, Lee Bollinger, the university's president until recently, said, "We realized [that] the only way to win on this was to unite higher ed and bring in mainstream America." Maybe. But it's also possible that the briefs in support of Michigan will turn the Court against the university.
One of the Michigan cases is a challenge to the admissions policy used by the undergraduate college, the other a challenge to the policy used by the law school. The essential fact in both cases is the different treatment of individuals according to their race. The undergraduate school treats applicants who are African American, Hispanic, and American Indian differently from all other applicants by awarding them 20 points out of a possible 150, with 100 points usually sufficing for admission. The law school gives a "plus" that it describes as "not insignificant" to applicants who are African American, Hispanic, and Native American (a larger classification than American Indian).
In the two cases, applicants lacking a preferred race or ethnicity contend that the admissions policies constitute discrimination in violation of the Fourteenth Amendment, which prohibits a state from denying to any person the equal protection of the laws. The Court's Fourteenth Amendment doctrine permits government to use race so long as it has a very good reason for doing so, and so long as there is no way to achieve its goals other than a very careful use of race. Michigan's well-known rationale is diversity. It wants to create classes that are sufficiently diverse, including racially and ethnically diverse, to enhance the education of all students. And it claims that the only way to ensure this is to use, in effect, a racial double standard in admissions.
Michigan obviously felt that its chances of winning in the Supreme Court would improve if it had by its side the many amici it has assembled. While the justices themselves typically read few amicus filings, they doubtless are aware of the briefs in the Michigan cases. The message they take from those briefs, however, may not be the supportive one Michigan intended.
The briefs confirm that virtually every selective college or university or professional school in the nation uses race in admissions, and for the same reason Michigan does--diversity. But their larger point is that the nation's economy and governance, indeed its very well-being, depends upon a system of higher education that maintains racial double standards in admissions.
The Court may go along with this. But if it does, it will have to swallow hard. The problem is less the goal of diversity than the means of achieving it. And the message the Michigan amici send is that we should happily indulge racial double standards and not worry about the discrimination they require or the extent to which they encourage people to view themselves and others in terms of race and ethnicity. Nor should we worry about how long those standards must be employed. Indeed, the logic of diversity-based affirmative action makes it hard to see how it would ever end. For so long as any racial or ethnic group had grade point averages or test scores lower than those of other groups, there would always be the need to distinguish applicants by race and take special measures to ensure that enough of the lower-scoring group got in--otherwise the educational experience of all students would suffer. Only if each group had more or less the same qualifications could an admissions office quit preferring certain applicants on the basis of race and ethnicity.
In sum, the message Michigan and its amici are sending the Court is that a properly diverse America requires the institutionalization of procedures that treat people differently depending on their race and ethnicity. That message is significantly different from the one offered the Court in most of its previous affirmative action cases--namely, that race must be taken into account temporarily, to remedy past discrimination. For the Court to accept Michigan's argument, it would have to get over its scruples about race-based classifications, which it has expressed even in cases where it has approved them. It would have to bring itself to believe, for example, that Justice Blackmun was wrong in the 1978 Bakke case when, writing in support of affirmative action in admissions, he hoped for the day when affirmative action would be "only a relic of the past" and when "persons will be regarded as persons," without regard to race and ethnicity.
More than merely being unable to accept Michigan's message, the Court may be troubled by it, so much so that it decides to reexamine Title VI of the Civil Rights Act of 1964, which the plaintiffs also invoke. Title VI says, "No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." Because the University of Michigan receives federal money, it must abide by Title VI.
Like the other provisions of the Civil Rights Act, Title VI is a colorblind statute. Influenced by the arguments of the original civil rights movement (before the movement embraced racial preferences), its framers understood "discrimination" to mean (in the words of Sen. Hubert Humphrey) "a distinction in treatment given to different individuals because of their different race." The reason anyone might give for making such a distinction in treatment doesn't matter: The law flatly outlaws discrimination.
Of course, five justices in the Bakke case rewrote Title VI, changing it from a colorblind law to one that "prohibits only those uses of racial criteria that would violate the Fourteenth Amendment if employed by a State or its agencies." Understandably, the parties and the amici on both sides of the Michigan cases have mostly offered the Court their views on the Fourteenth Amendment. But there is no good reason the Court couldn't decide to distinguish Title VI from the Constitution, recover the colorblind rule of Title VI, and enforce it. Were that to happen, it would be up to Congress to decide whether to amend Title VI to permit race-based distinctions--that is, to make racial discrimination acceptable under our civil rights laws. You can bet that Michigan and its supporters would be among the first to lobby Congress to do just that.
Terry Eastland is publisher of The Weekly Standard.
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