What is right and constitutional today will be wrong and unconstitutional in 25 years.
Thus spake Sandra Day O’Connor in the majority Supreme Court decision approving the University of Michigan Law School’s race-based admissions policy, a decision applauded by liberals and President Bush, who had sent his own Solicitor-General to the high court to argue against the policy.
It was a 5 to 4 decision, hailed nonetheless as a “clear majority” which assures the use of skin color as a ticket of admission in America so long as it is not white. The decision delighted the organization calling itself “BAMN,” the acronym for Malcolm X’s famous call to arms, “by any means necessary.” BAMN promises now to work for abolition of California’s Proposition 209 and like-minded policies in effect in Texas and Florida.
Michigan’s argument that active affirmative action is required to achieve “diversity” and a racial “critical mass” (the boys in the Physics Department must have cringed at that) won the day for the law school, but the more transparent up-front bonus points awarded undergraduate applicants was struck down, 6 to 3. Justice Rehnquist wrote for the majority that giving non-white applicants a 20-yard headstart in a hundred yard dash for a classroom seat is not one of those “narrowly tailored measures that further compelling governmental interests” that Justice Lewis Powell had written of in the old Bakke Case.
But Justice O’Connor, in upholding the Law School’s use of race in considering applicants, declared that diversity can be a compelling state interest. And the Law School had the wit not to set forth a boldly transparent point system in concocting its form of critical mass, so that school’s form of casuistry gets a pass. She got four others to agree. And she got President Bush to cheer. “I applaud the Supreme Court,” he said in a statement. “Today’s decisions seek a careful balance between the goal of campus diversity and the fundamental principle of equal treatment under the law.”
In one of the truly precedent-setting twists of legal legerdemain, Justice O’Connor foresees a day 25 years from now when what she countenances in 2003 will be unconstitutional. In words redolent of the Brown-Topeka decision suggesting school segregation be abolished with “deliberate speed,” she urges university systems to get ready for a time when they may not do what they are now doing.
Absent from the court’s language but implicit in the gravamen of the case is not admission, but confession. Education at the elementary and secondary level in America is failing a large percentage of the non-white population. And all the reparations offered by the universities cannot undo it.
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