Bakke Bites Back

...Advocates of racial preference hardly bother any more to claim that they seek to help the disadvantaged...

...University admissions offices can't claim race is just a proxy for some other, more relevant attribute-not when their claim that students of different races present "diverse" viewpoints is so little removed from the claim that students of different races are just, well, different...

...If the Supreme Court tells university administrators to ignore race, many will still find ways to consider it surreptitiously...

...In Gratz v. Michigan, also decided last December, federal District Judge Patrick Duggan ruled that the pre-1999 undergraduate admissions system at the University of Michigan violated Powell's Bakke standard, by explicitly reserving special places for minority applicants...

...But then Rosen betrays his real concern when he writes: "the political demand for racial diversity is too great to be resisted...

...In a separate case against the Michigan Law School (Grutter v. Michigan) last March, however, federal District Judge Bernard Friedman struck down Michigan's law school admissions procedures for establishing a two-track racial admissions process (where minority applicants are almost automatically admitted with GPA and standardized test scores that would spell automatic rejection for a non-minority applicant...

...In a much-discussed article in the May 14 issue of the New Republic, Jeffrey Rosen acknowledges the Michigan studies don't prove anything and touts, instead, his own personal experience as a law teacher.When black students in his class talked about their humiliating encounters with police, other students changed their views on racial profiling...

...This is pretty much the level to which the debate on affirmative action in college admissions has sunk...

...L s will do something valuable if it forces public university administrators to stop talking about students of different skin pigment as if they were specimens in a private menagerie...

...Bakke Bites Back Racial profiling only the Ivy League could love BY JEREMY RABKIN B ack when kings were kings, few gifts were so welcome as some exotic new species of bird or bear for the palace grounds...

...The Supreme Court hasn't addressed university admissions since its confusing 1978 Bakke decision...

...Justice O'Connor, who had previously condemned race-based districting schemes, shifted sides...

...Even though the university itself conceded the new admissions system is functionally equivalent to its predecessor, the judge was satisfied by the subterfuge...

...Four justices in Bakke held that racial preferences that favor minorities are sometimes unlawful, while four justices held they are always unlawftl...

...Rights, which has organized both law suits, says Judge Duggan's ruling is "so confused" and Judge Friedman's ruling is such "a blockbuster" that even a liberal panel of judges on the Court ofAppeals would have trouble making a convincing case to uphold the former and overturn the latter...

...Today's aristocrats maintain their manicured lawns on academic campuses, but they are just as keen on achieving what they call "diversity...

...By contrast, Michigan and other state universities really are treating individual students differently on the basis of their race...

...With "scientific studies" like this, anecdotes might be more compelling...

...As a devastating critique by the National Association of Scholars has shown, the main study by psychology professor Patricia Gurin rests on a limited survey of students in ethnic studies courses, and asks only whether they now recognize greater "complexity" in thinking about "issues...

...Only two weeks earlier, however, in Smith v. University of Washington, the Ninth Circuit endorsed a racial admissions preference at the Washington Law School-on the grounds that Powell's opinion does permit racial preferences, but not quotas...

...Both rulings are now on appeal.Terry Pell, CEO of the Center for Individual THE AMERICAN SPECTATOR 0 Summer Reading Issue 2001 19 Advocates of racial preference hardly bother any more to claim that they seek to help the disadvantaged...

...Last December, the Fifth Circuit Court of Appeals reaffirmed its 1996 ruling in Hopwood v. University of Texas that a "diversity" rationale did not permit a state law school to prefer some applicants over others on the basis of race...

...One of his "most committed conservative students," he takes care to mention, was an African-American woman who "bitterly resented the claim that African Americans think and vote alike...

...Now they argue more honestly that they treat minority applicants differently in order to benefit the institution itself...

...The rejoicing may be premature...

...Anyway, in redistricting the state does not treat individual voters differently, but only gives plots of land new boundaries...

...And the Court has always granted wide latitude to states to divide their legislative districts along arbitrary, partisan lines...

...So top universities now insist the Constitution must bend to accommodate the acquisition requirements of their collections...

...There is still value in driving demeaning racial stereotypes into furtive corners...

...Justice Breyer's majority opinion emphasized that the legislature's motives were not necessarily racial: boundary lines concentrating black voters in particular districts might well have aimed at maximizing the concentration of Democratic voters...

...Still, he notes, "her position, too, contributed to the diversity of the class...

...Lower courts are all over the map...

...But the new admissions system, which first assigns a huge point bonus to minority applicants and then purports to judge all applicants based on "the same" system of point totals, was just fine, he ruled...

...Now they argue more honestly...

...Having student specimens of varied races is considered a great mark of distinction...

...It does not even compare students who did or did not experience racially diverse classrooms...

...Are courts really going to swallow this reasoning...

...We are not told whether Professor Rosen turned to black students to offer distinctive black perspectives on the intricacies of, say, the mens rea doctrine or the rest of his curriculum...

...Abandoning affirmative action will actually "undermine meritocracy" as elite schools abandon objective admission criteria, like grades and test scores, to maintain racial quotas...

...The University of Michigan, which has been the target of two major law suits, has probably spent more than $10 million to defend its race-conscious admissions process, including studies purporting to demonstrate that racial diversity contributes to the learning of non-minority students...

...A clear ruling against racial profiling in university admissions will do something valuable if it forces public university administrators to stop talking about students of different skin pigment as if they were specimens in a private menagerie...

...To his credit, Rosen seems uncomfortable with the implications of his argument...

...In order to remain elite and yet admit minority students, universities must be allowed to set lower admission standards for certain races...

...Justice Powell's undecided deciding opinion split the difference by banning race quotas but allowing race to be considered "as one factor" for the sake of"diversity...

...Meanwhile, advocates of preference schemes have taken heart from the Supreme Court's April ruling in Hunt v. Cromartie, in which the majority refused to overturn a North Carolina redistricting scheme, even though a lower court found it used race as the "predominant factor" in its drawing of lines...

...So racial set-asides can benefit other students by exposing them to spokesmen for the distinctive black perspective-and also by reminding other students that there is no distinctive black perspective...