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Politics : PRESIDENT GEORGE W. BUSH -- Ignore unavailable to you. Want to Upgrade?

To: Mr. Palau who wrote (345144)	1/20/2003 12:22:08 PM
From: Thomas A Watson	Read Replies (1) \| Respond to of 769670

duhhh, The UM use of race violates the Constitution. Therefore the use of race violates the Constitution. The UM case provides an example of the un-constitutional use of Race.

To: Mr. Palau who wrote (345144)	1/20/2003 12:34:53 PM
From: DMaA	Read Replies (1) \| Respond to of 769670

Here's an analysis you may not have seen: Last Wednesday President Bush made a tough speech arguing against racial preferences and announcing that his administration would weigh in on behalf of plaintiffs challenging the University of Michigan's admissions policies in a pair of Supreme Court cases. On Thursday Solicitor General Theodore Olson filed the briefs in the cases of Gratz v. Bollinger (undergraduate) and Grutter v. Bollinger (law school). On Friday the New York Times published a "news analysis" in which Supreme Court reporter Linda Greenhouse claimed that "the reality of [the brief's] legal argument diverged substantially from the rhetoric of the president's prime-time statement." The administration, Greenhouse suggests, pulled a fast one on its conservative supporters. Well, over the weekend we sat down and read the the Grutter brief (link in PDF form), and we're pleased to report that the delightfully named Greenhouse is full of hot air. Here's her argument: True to [President Bush's] promise, the briefs did ask the court to declare unconstitutional the undergraduate and law school admissions programs in dispute. But it did so by means of a legal analysis that, far from insisting that any consideration of race was impermissible, did not even ask the justices to overturn the Bakke decision, the 1978 landmark ruling that by allowing race to be used as a "plus factor" ushered in a generation of affirmative action in public and private college admissions. It was as if the administration had filed a brief denouncing abortion without asking the court to overturn Roe v. Wade. "In the end, this case requires this court to break no new ground" in order to hold the law school's admissions policy unconstitutional, the administration said. That's the extent of her legal analysis; the rest of the piece consists of speculation about the motives behind the administration's purported two-faced approach to the case. Greenhouse's analysis is laughable. When the administration says that the case requires the court "to break no new ground," that just means it's basing its argument on existing Supreme Court precedent. And it's true that the administration doesn't ask the court to overturn Bakke. Indeed, it cites that 1978 case repeatedly in support of its argument. But why would Greenhouse expect otherwise? After all, in Bakke the court came down on the same side the administration is taking now. It struck down the University of California's race-based admissions policy. Greenhouse doesn't seem to have interviewed any conservative legal activists for this story. If she had, she would have learned that some are indeed disappointed in the brief, because the administration stops short of denying that "diversity" is a "compelling interest" that can justify the use of race in university admissions decisions. Terry Eastland is among those making this case. It turns out, however, that there's less to this conservative complaint than meets the eye. On page 14 of the brief (page 15 of the PDF document), the administration takes note of the law school's claim that diversity is a compelling interest. Two pages later, the brief declares: Ensuring that public institutions are open and available to all segments of American society, including people of all races and ethnicities, represents a paramount government objective. It sounds as if the administration accepts the argument that diversity is a compelling interest. But it's unclear if "ensuring" that institutions are "open and available" is the same as "diversity," and while "paramount government objective" sounds like roughly the same thing as "compelling interest," it's actually an evasion, a phrase devoid of legal meaning, as blogger Josh Chafetz points out in a valuable analysis. The administration thus takes no position--at least so far--on whether diversity is a compelling interest. Instead, it bases its case against the Michigan admissions policy on two arguments: Even when trying to achieve a "compelling interest," a government agency cannot take race into account unless it does so in a "narrowly tailored" way and--crucially--unless there are no "race-neutral alternatives." Even if the interest is compelling and race-neutral alternatives nonexistent, "quotas" are still unconstitutional. The Michigan plan explicitly seeks to enroll a "critical mass" of students from particular ethnic groups, a quota all but in name. (The university, of course, denies that a "critical mass" is a quota.) These arguments rest on well-settled Supreme Court precedent, and they ought to be sufficient to strike down the Michigan policy. The administration's conservative critics, however, contend that these arguments are insufficient because they fail to knock down "diversity" as a rationale for racial preferences. Yet the brief does challenge the idea of diversity, albeit slyly. For Ted Olson has hidden an Easter egg at page 24: "Although respondents [the University of Michigan] have not been clear about what they mean by diversity, we assume that they are not pursuing racial diversity for its own sake." That's actually not true; the University of Michigan brief acknowledges that the policy's aim is "to achieve meaningful racial diversity in its student body." But that admission runs afoul of Justice Lewis Powell's deciding opinion in Bakke, which Olson's brief quotes: "Preferring members of any one group for no reason other than race or ethnic origin is discrimination for its own sake." The implication is that while diversity of some sort may be a compelling interest (then again, it may not), racial diversity not only is not compelling; it is illegitimate. Thus the only thing the brief concedes--and concedes by omission, not explicitly--is that promoting diversity of something other than race may be a compelling interest that would justify taking race into account (but not using quotas) if there's no race-neutral way of achieving the same goal. To put it more simply, the use of race in university admissions is constitutional (if ever) only if it is the only means to a nonracial end--which seems close to a logical impossibility. In Bakke, Justice Powell managed to come down on both sides of the diversity question. While he rejected racial diversity "for its own sake," he also maintained that "racial or ethnic origin" was an "important element" of "the diversity that furthers a compelling state interest." It is upon the latter of these logically contradictory propositions that a quarter century of justifications for racial preferences in higher education have been built. That's rather amazing when you consider that these were the views of one man only; not a single other justice joined the portions of Powell's opinion dealing with diversity. That's why the Bush administration isn't asking the court to "overturn Bakke." On the central issue in question, whether diversity is a compelling interest, there is no precedent to overturn. In any case, Justice Powell's view collapses under the weight of its own illogic. The Supreme Court may not accept every element of the administration's argument, but if it does, conservatives will have won a total victory. opinionjournal.com