On The Home Front, Bush Caves On Quotas

On April Fool`s Day, the Supreme
Court hears the two

University of Michigan
affirmative action cases:
v. Bollinger and

Gratz and Hamacher v.
. Credulous Republicans, who still
think their president and party oppose affirmative
action and minority preferences, will be the fools.

The Bush Administration has quietly
sold out its conservative base in a deluded quest to win
minority votes by pandering on “diversity.” The only
difference between Republicans and Democrats is that
Democrats are honest – and effective.

The petitioners are white
applicants denied admission to the University of
Michigan. Barbara Grutter was turned down by the law
school. Jennifer Gratz and Patrick Hamacher were
rejected by the college. All alleged, with strong
evidence, that they were rejected to make room for
less-qualified black and Hispanic applicants who were
admitted to meet racial quotas.

This was no surprise. For over 30
years, American universities have routinely preferred
non-white over white applicants, as well as

over men and

over Americans, in pursuit of “diversity”

cosmic justice
. The University of Michigan`s racial
quota schemes were pretty explicit, aimed at achieving
minority enrollment roughly proportional to their
percentages of the general population. Undergraduate
admissions officers awarded points for assorted
characteristics and achievements, with 100 the usual
threshold for automatic admission. A perfect SAT score
was worth 12 points. Being black, Hispanic or American
Indian was good for 20.

Being white—or Asian—was good for

When the U.S. Supreme Court agreed
to review the Michigan cases, the Bush Administration
was widely expected to file amicus curiae briefs
opposing the University`s use of quotas. (Amicus
briefs are filed by non-parties that have an
interest in a case`s outcome. The Michigan cases have
drawn more than any previous Supreme Court case – most
support the University.) But after Trent Lott`s
maladroit birthday kiss to

Strom Thurmond,
the Administration waffled. Finally,
Solicitor General Theodore Olson did indeed file briefs
opposing explicit racial quotas—but no more.

As VDARE.COM`s Steve Sailer
predicted, the BushRoveans are trying to have it both
ways. They hope to dupe the Republican faithful with a
rejection of the most blatant form of affirmative
action. Simultaneously, they aim to appease the

racial lobbies
and diversity racketeers by
advocating nothing that might actually make admissions

What the Administration is really
asking for: a reaffirmation of the affirmative action
status quo
of the last 25 years – discriminate,
don`t tell.

The briefs Olson filed [Grutter (Law School)

; Gratz (Undergraduate) PDF] are
reportedly not what he submitted to the White House.
According to

Robert Novak
and others, Olson`s original drafts did
argue against any consideration of race, rejecting the
current shibboleth that government has a “compelling
interest” in the racial composition of student bodies.

But between Olson and Bush stood
White House counsel, former Texas Supreme Court Justice

certified Bushbuddy
Alberto Gonzales. Gonzales

affirmative action and

. He revised the briefs to laud diversity and
emphasize government`s compelling interest in achieving
it, excising any call to eliminate preferences other
than explicit quotas. Olson apparently never got to make
his case to the president–who apparently agrees with
Gonzales anyway, in as far as he thinks about it at all.

The Administration briefs argue
that Michigan`s racial admissions quotas are
unconstitutional, citing the

Equal Protection Clause of the 14th Amendment
The briefs also assert, incontrovertibly, that
Michigan`s admissions procedures violate

Title VI
of the
Civil Rights Act of 1964.

For those who favor race-neutral
admissions, the good news ends there.

The briefs, as revised by Gonzales
, do no more than ask the Court to

its confused 1978


ruling. Bakke is the root of the current muddle. In
it, Justice Lewis Powell, in a majority opinion no other
Justice joined, said that numerical racial quotas for
university admissions were unconstitutional. But Powell
also accepted the argument that student racial diversity
was so important that government has a compelling
interest in achieving it.

Powell`s position in essence:
racial discrimination in the service of social
engineering is acceptable, just don`t explicitly
quantify it.

Powell obligingly offered the
social engineers a blueprint. He quoted extensively from
Harvard College`s explanation of how in the mid-1970s it
was rigging admissions to generate a diverse student
body without explicit quotas. According to Powell, race
could be a factor; it just couldn`t be the “deciding”
factor. There is no accurate test, of course, to
determine when admissions officials cross that imaginary

The Bush Administration briefs do
not even ask for one. Its Grutter brief


In the
final analysis, this case does not require this Court to
break any new ground to hold that [
the University of
Michigan`s] race-based admissions policy is

The Bush Administration is happy
with Bakke because it fully accepts the
diversity rationale that led Michigan to discriminate in
the first place. Its Grutter brief concedes:

“Ensuring that public institutions,
especially educational institutions, are open and
accessible to a broad and diverse array of individuals,
including individuals of all races and ethnicities, is
an important and entirely legitimate government
objective. Measures that ensure diversity, accessibility
and opportunity are important components of government`s
responsibility to its citizens.”

The Bush briefs implicitly assume,
typical of affirmative action defenses, that adequate
“accessibility” and “opportunity” can only exist when
ethnic groups are present in numbers roughly
proportional to their percentage of the population. That
truly equal accessibility and opportunity might mean
lower percentages of black and Hispanic students—or
higher percentages of Asians and Jews—are unacceptable.
So it is never considered.

The Bush Grutter brief makes
clear that the Administration has no objection to

race-conscious admissions
– as long as they`re not


“Nothing in the Constitution prevents
public universities from achieving these laudable goals
diversity, accessibility and opportunity]
because there are a variety of race-neutral alternatives
but the alternative the Administration advocates is
no such thing] to achieve the important goals of
openness, educational diversity and ensuring that all
students of all races have meaningful access to
institutions of higher learning.”

But if truly race-neutral measures
are not producing the correct proportions, the Bush
brief continues –

“Schools may identify and discard
facially neutral criteria that, in practice, tend to
skew admissions in a manner that detracts from
educational diversity. [
i.e., that produce student
bodies that are unacceptably white] They may also
adopt admissions policies that seek to promote
experiential, geographical, political or economic
diversity [
all of which are handy surrogates for
race] in the student body, which are entirely
appropriate race-neutral governmental objectives.”

And the Bush Administration has its
own idea about how to skew admissions, which it offers
the Court as its surrogate for the Harvard
discrimination model that so pleased Justice Powell.
After the Fifth Circuit Court of Appeals ruled in
(1996) the University of Texas law school`s
quota admissions policy unconstitutional, Texas educrats
and politicians cast about for a way to rescue minority
preferences. Their solution, signed into law by Governor
George W. Bush:
to guarantee admission to the state
university of his choice to any Texas high school
graduate in the top 10% of his class. Similar programs
have been enacted in Florida (top 20%, signed by

Governor Jeb Bush)
and California (top 4%).

The effect:

de facto racial
—10% of the graduates of Texas`
worst high schools, often overwhelmingly black and

, are guaranteed places, while better
qualified applicants from more demanding schools are
denied. Black and Hispanic numbers at the University of
Texas, which fell after the Fifth Circuit`s ruling, were
largely restored after the 10% Plan became law. The Bush
briefs celebrate this result—even though, viewed
objectively, it is a clear indication that race is once
again trumping merit. The only difference is that the
University of Texas can`t even discriminate in favor of
the best black and Hispanic candidates, who may very
well be in demanding schools where they don`t make the
top 10%.

The New York Times` Supreme
Court reporter Linda Greenhouse has gloatingly

(March 30) that the Court will not upend
the racial preference racket. Greenhouse, revising Mr.

that “the Supreme Court follows
th`election returns,”
argues that the Court will not
buck the will of the establishment as expressed in that
blizzard of amicus curiae briefs filed in support
of the University of Michigan by what she describes as
“the alma maters of every member of the court,…dozens
of Fortune 500 companies and, most unexpectedly, 21
retired generals and admirals.”

Greenhouse quotes the old
warhorses` argument: “`At present, the

cannot achieve an officer corps that is
highly qualified and racially diverse`
without affirmative action.”
So race must trump
merit to produce the more diverse, but likely less
capable, officer corps that they prefer.

It is important to note that these
arguments are frankly non-legal. Apparently, Greenhouse
believes, and the Establishment hopes, that the
Anglo-American ideal of an objective law must buckle
under the stress of racial conflict.

If they are right, this is yet

example of diversity`s cost to America. And
the Bush Administration`s failure to provide leadership
and argue the case against racial preferences is all the
more culpable.

Racial quotas are a zero-sum game.
If minorities are guaranteed perquisites, the white
majority must lose them. And whites, when we last
looked, are the Republican Party`s

political base.

There is a word for what is
emerging in America, with George W. Bush`s support. That
word is Lebanonization – a government`s attempt
to suppress communal conflict by ever-increasing
intervention in society aimed at

reapportioning goodies
according to some political

Of course, it ultimately failed in

, which

into civil war between the different
factions of Christians, Muslims and others. And –
perhaps a minor point—it`s incompatible with freedom.

Are we conquering the Middle East –
or is the Middle East conquering us?

Howard Sutherland (email
him) is a lawyer, a Texan and a concerned TV viewer of
his old unit,

3rd Battalion, 5th Marines,

currently on the road to