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Standing up to Racism
[January 10, 2003]

By S. M. Oliva

The Bush administration is currently debating whether to file briefs in a pair of affirmative action cases now before the Supreme Court. The cases, arising from admissions policies at the University of Michigan, involve that school's explicit use of race in assessing student qualifications. Although President Bush is on record as opposing this type of "affirmative action," political pressure from within the White House may prevent the Justice Department from taking a stand against the Michigan policy.

According to news reports, Solicitor General Ted Olson--the government's chief lawyer before the Supreme Court--submitted a brief to the White House earlier this month opposing Michigan's policy. White House aides, allegedly including counsel to the president Alberto Gonzales, oppose filing Olson's brief for fear it will incite a backlash against Republicans. Following the ouster of Senate Republican leader Trent Lott, the White House seems to possess a hyper-sensitivity to charges of racism. On the other hand, not filing a brief will subject the president to charges of hypocrisy from his conservative supporters.

The administration must make a final decision by January 16, the Court's deadline for briefs supporting the petitioners. A number of groups, including the Center for the Advancement of Capitalism, plan to file briefs that day asking the Court to hold the Michigan policy unconstitutional. Although the solicitor general's brief will not likely decide the ultimate outcome, the Court traditionally affords great weight to the government's opinion on constitutional matters, and General Olson's brief would certainly strengthen the case against Michigan's policy.

It's remarkable the administration is even debating this question. The president campaigned in 2000 against the types of affirmative action policies typified by Michigan. As governor of Texas, President Bush abolished the University of Texas' affirmative action policies, and replaced it with a merit-based "affirmative access" plan that admitted the top 10% of high school graduates in the state regardless of race.

Political posturing aside, there is no evidence that the president changed his mind about affirmative action. He still opposes it. And if that's the case, the Michigan policy should be a no-brainer. The policy involves an explicit racial quota that awards 20 points (out of 105 required for admission) simply for being black, Hispanic, or Native American--"underrepresented minorities" in the words of the university. To put this in perspective, Michigan only awards 12 points for a perfect SAT score, 1600 combined. That's simply remarkable. A measure of actual achievement is not even considered equal to skin color, even though the latter says nothing about the character, intelligence, or ability of the individual. At best, Michigan administrators are simply lazy, assigning value to race so they can avoid individual assessments. At worst, the university is fueling racism and balkanization on their own campus.

To call someone an "underrepresented minority" is to reject individualism. After all, if a man is no more than a proxy for a racial group, there is no point in even bothering to assess his individual qualifications or merits. Simply obtaining a "critical mass"--the university's euphemism for ‘quota'--of racial groups constitute creation of a diverse student body. It is this toxic notion of "diversity" that is at the heart of this case. It is this notion that the president must openly acknowledge, condemn, and eliminate from our political institutions. "Diversity" cannot exist as an open assignment of collective privilege; it can only take form as the gathering of individual minds dedicated to a common goal. In the case of a university, that common goal is education. Diversity, as applied by Michigan, contradicts and ultimately nullifies the concept of education, and by extension individualism.

The constitutional issue here is very simple. Michigan implicitly acknowledges its policy violates the Equal Protection Clause of the 14th Amendment, but argues the need for "diversity" constitutes a compelling reason to override the Constitution's pro-individual position. No reasonable person can accept this view. Any way you examine it, Michigan's admissions policy creates different standards for different people based solely on race. It is a racist act that violates the intent, spirit, and express language of the 14th Amendment.

The White House has a moral and political duty to take a stand here. Normally the Supreme Court would invite the solicitor general to file a brief on such an essential constitutional question. Their failure to do so here, however, does not absolve the administration of its responsibility to assert leadership on a fundamental matter of principle. Furthermore, if the White House ignores this case for temporary political convenience, the president will abdicate any authority to credibly discuss this issue now or in the future. The burden of leadership requires the president advance careful, reasoned arguments on this question, rather than offer slogans that pander to the emotional whims of interest groups. Frankly, most of the interest groups asking the president to support affirmative action would oppose his agenda regardless of how this case turns out. The president should focus on articulating and defending his principles, not worrying about how the media and his opponents will react.


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