Friends of Discrimination

...The overwhelming majority of these amicus curiae filings support the university...

...Michigan's well-known rationale is diversity...

...Maybe...

...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 Terry Eastland is publisher of THE WEEKLY STANDARD...

...A small army of retired military officers, many of them well known, like Norman Schwarzkopf, have signed one brief...

...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...

...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...

...To the extent it is still possible to speak of an establishment in America, the establishment is standing proudly with Michigan...

...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...

...in an interview with the N^-w 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...

...The problem is less the goal of diversity than the means of achieving it...

...The message they take from those briefs, however, may not be the supportive one Michigan intended...

...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...

...Hubert Humphrey) "a distinction in treatment given to different individuals because of their different race...

...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...

...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...

...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...

...Michigan, it turns out, recruited many of these amici...

...BY TERRY EASTLAND THE MICHIGAN AFFIRMATIVE action cases, which the A- Supreme Court will hear on April 1, have attracted more than 100 friend-of-the-court briefs, a record number...

...But if it does, it will have to swallow hard...

...You can bet that Michigan and its supporters would be among the first to lobby Congress to do just that...

...While the justices themselves typically read few amicus filings, they doubtless are aware of the briefs in the Michigan cases...

...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...

...Nor should we worry about how long those standards must be employed...

...Understandably, the parties and the amici on both sides of the Michigan cases have mostly offered the Court their views on the Fourteenth Amendment...

...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...

...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...

...Because the University of Michigan receives federal money, it must abide by Title VI...

...The reason anyone might give for making such a distinction in treatment doesn't matter: The law flatly outlaws discrimination...

...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...

...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...

...other applicants by awarding them 20 points out of a possible 150, with 100 points usually sufficing for admission...

...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...

...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...

...And it claims that the only way to ensure this is to use, in effect, a racial double standard in admissions...

...Like the other provisions of the Civil Rights Act, Title VI is a colorblind statute...

...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...

...it wants to create classes that are sufficiently diverse, including racially and ethnically diverse, to enhance the education of all students...

...The Court may go along with this...

...But it's also possible that the briefs in support of Michigan will turn the Court against the university...

...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...

...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...

...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...

...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...

...Were that to happen, it would be up to Congress to decide whether to amend Title VI to permit race-based distinc-tions—that is, to make racial discrimination acceptable under our civil rights laws...

...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...

...Indeed, the logic of diversity-based affirmative action makes it hard to see how it would ever end...