Race and the Republicans
Race and the Republicans "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...
...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...
...By coming down on the side of nondis-crimination 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...
...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...
...The latter would ask that the discrimination end, now...
...This claim has been subject to vigorous debate, so much so that you wonder how it can be considered sufficiently "compelling" to justify discrimination...
...This rationale wrongly sees individuals as fungible members of their racial groups (or the groups to which admissions officers assign them...
...It says that education is improved by interracial conversations and comments that occur ranA brief arguing against diversity would be the one most intensely criticized by race demagogues...
...Indeed, Lott's ultimate reparative act might have been to switch parties...
...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...
...The Michigan schools, of course, are state schools...
...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...
...Being African American, Hispanic, or American Indian is worth 20 points...
...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...
...The only ways we can think of would be bad...
...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...
...Make that, almost any kind of brief...
...The right choice is to join the plaintiffs and make a full-throated argument against race discrimination...
...The current Court, when it agrees to hear a controversial case at all, tends to address the big issue at stake...
...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...
...Some of the judges in the litigation have done just that...
...Diversity-based discrimination, by the way, is never-ending, simply because it contains no principle by which it might be ended...
...Terry Eastland, for the Editors...
...Uses of race are almost always loosely tailored, if tailored at all, and Michigan's policies share that problem...
...And Michigan is hardly an isolated case...
...The law school similarly favors applicants from these three groups...
...is already influencing an internal Bush administration debate on what approach to take on a major affirmative action case...
...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...
...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...
...Diversity regulation may even mean discriminating against those you would expect to be favored...
...The point of the weighting is to guarantee each class a "critical mass" of minority students—at least 10 percent...
...Its flaws are apparent...
...But there's no appeasing demagogues...
...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...
...The argument is too weak an instrument to put a halt to discriminatory admissions...
...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...
...The Lott business has been like a powerful magnet distorting the debate on this,' the official said...
...It is certainly possible to approach the Michigan cases in such terms, while dodging the larger constitutional issue...
...For always it will be possible to say that there are both "underrepresented" and "overrepresented" groups...
...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...
...The undergraduate school gives applicants "points," with 100 (out of a possible 150) usually enough to establish admission...
...Which means that diversity-based admissions is a national issue...
...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...
...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...
...If that's what the administration winds up doing, the race intimidators will indeed have triumphed...
...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...
...By filing a brief against diversity, the administration could reaffirm the Republican party's and indeed the nation's best principles...
...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...
...New York Times, December 19, 2002 Distorting the debate...
...The main legal issue is the same in both cases...
...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...
...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...
...For race-mongering Democrats now looking for Republicans to intimidate, any kind of brief is likely to draw accusations of racism...
...The claim made for diversity is empirical, not one of principle...
...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...
...But all the wrong choices are not equally bad...
...Indeed, it has been litigated in no fewer than four federal circuits, and those courts are in sharp disagreement...
...But it would fail to recognize the political opportunity—for party and principle—that Michigan affords...
...We come, then, to what the administration should do: File a brief opposing the diversity rationale...
...The question before the Court is whether the schools' use of race in deciding which students to admit violates the equal protection guarantee...
...Lott's statement of support for affirmative action . . . has complicated a developing debate within the administration over a coming Supreme Court case...
...There is a practical point here as well...
...If it supports the plaintiffs, the administration can make either a timid or a full-throated argument...
...domly, inside and outside the classroom...
...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...
...A perfect SAT score, for instance, will net you 12 points...
...That would be a purely political argument...
...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...
...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 Michigan cases offer an especially timely opportunity for the Bush administration to take a stand in favor of nondis-crimination and equality of treatment...
...Yes, a brief arguing against diversity would be the one most intensely criticized by the race demagogues...
...After all, it is the pursuit of "diversity" that has produced Michigan's discriminatory admissions...
...The former would indulge discriminatory admissions...
...How so...
...Schools throughout the country likewise invoke diversity to justify their racial classifications...
...So if the administration enters the cases at all, it must do so as an amicus curiae, or friend of the court...
...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...
...Perhaps most striking, a senior administration official said today that Mr...
...In the Piscataway case several years ago, the Clinton administration acknowledged (approvingly) that the diversity rationale may be used to justify discrimination against blacks...
...Here let us pause to introduce essential facts and the key legal issue...
...It's also the right thing to do...
Vol. 8 • December 2002 • No. 16
