The Michigan Mess: On Cognitive Dissidence About Quotas – And The Need For A Constitutional Amendment

"I applaud the Supreme Court for recognizing the value of diversity on our Nation's campuses. Diversity is one of America's greatest strengths. Today's decisions seek a careful balance between the goal of campus diversity and the fundamental principle of equal treatment under the law."

George W. Bush, June 23, 2003

"The Supreme Court delivers a victory--but not a total one--for colorblindness."

James Taranto, WSJ's "Best of the Web," June 23, 2003

Unlike the President, the only good news I can find regarding Sandra Day O'Connor's majority decision in the University of Michigan racial preference case was that this time James Taranto's perpetual cluelessness stuck out like a sore thumb.

Back in January, lots of rightist pundits besides Taranto were at least temporarily beguiled by the Administration's duplicitous (and ultimately disastrous) briefs to the Supreme Court.

But now what I wrote in VDARE.com immediately after their filing appears to be widely accepted: "The Bush-Rove Plan will entrench the [Diversity] Industry and make it a more amorphous target ('Quotas? We don't need no steeenking quotas!')"

This time, a more typical reaction that Taranto's was that of one scholar active in the movement against racial-ethnic preferences who instantly told a private email group: "We got nuked."

That doesn't mean mainstream conservatives aren't still rather naïve. In the aftermath, some are diligently listing logical inconsistencies in O'Connor's opinion that could provide the basis for future litigation. I fear, however, that they are missing the larger point.

The obvious incoherence of the majority opinion serves as a warning from the Supreme Court majority to all future litigants:

"If you come back to us, we'll just make up some more nonsense! Can't you see we'll do whatever it takes to justify quotas or goals or critical masses or who knows what new euphemism we'll dream up next time?"

Many believe that O'Connor placed a 25-year time limit on reverse discrimination.

But when she wrote, "We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today," she was merely uttering a politically correct obiter dictum about how she had faith that minorities would be acing their LSATs by 2028. If they haven't … then carry on discriminating!

After all, "diversity" i.e. proportional representation is now officially decreed to be a "compelling interest."

O'Connor would be 98 years old in 2028. So she's probably not expecting to suffer any embarrassment in case her prediction doesn't come true. But even she might not have been so glib if she knew psychometricians are already able to test her test score forecast. And the prognosis looks bad.

Age three is the first point at which children can be effectively tested for mental aptitude. Unfortunately for O'Connor, the racial gaps that cause demand for quotas are already [PDF] apparent among preschoolers.

Some of the kids who will be applying to law school in 2028 are already alive. The rest will be born fairly soon. Unless the race gap in aptitude among toddlers suddenly, miraculously, vanishes in the next few years, there's no hope for O'Connor's forecast.

Meanwhile, in NRO, Jay Nordlinger gave classic expression to establishment conservative Righteous Right thinking, such as it is, about the future of affirmative action.

"I think that affirmative action - a.k.a. race preferences, a.k.a. reverse discrimination - will come to an end when one of two things happens: 1) K through 12 education so improves as to make black and Hispanic students competitive for college, obviating the need for affirmative action (this is the Thernstrom/Kirsanow theme, and a true one)…"

(But how can schooling, important as it is, ever be a cure-all for inequality when the racial gap is measurable two years before children enter kindergarten?)

"Or 2) black Americans themselves become so disgusted that they demand an end to this racial favoritism."

Sure, Jay. That will happen Real Soon Now.

One of the sillier responses to O'Connor was George Will's: "Crude Remedy for A Disappearing Problem."

Why does Will think the problem is disappearing? Because "the Census Bureau reported that Hispanics have supplanted African Americans as the nation's largest minority."

Hmmmm … Exactly how is the problem being solved by importing an even bigger "protected class" minority group that suffers almost as severe academic deficiencies as blacks? (Hispanic 12th graders averaged 3.8 grade levels behind whites in reading on the 2002 National Assessment of Educational Progress test. Blacks were only about another grade back. And the Hispanic figure is skewed upward somewhat by their higher dropout rate, which winnows out the less academic.)

Will tells us that affirmative action must collapse of its own weight because black and Hispanic are increasingly seen as dubious "scientific categories."

But, George, nobody ever said that Hispanics comprise a "scientific category." If the government started giving out goodies to people born on Wednesdays, within a year we'd see pressure groups with names like The Children of Woe lobbying for continuation of Wednesdayians' privileges. PBS would be running Wednesday Pride documentaries during Wednesday History Month about famous Wednesdaytarians like Jimmy Carter, Bruce Lee, and Rosie O'Donnell.

Will has it exactly backwards. The rapid growth of legally-preferred Hispanics won't make the current moderately bad quota problem go away. Instead, it will make reverse discrimination a major threat to American harmony as the ratio of minority beneficiaries to white victims rises.

The essence of statesmanship is heading off dangers before they become acute. Obviously, we can't rely on the Supreme Court (average age 69) to protect us from perils that will hit hardest after they have gone fully senile.

Americans need political action now. If we can't win today when the unprivileged majority outvotes the privileged minorities by more than four to one, how are we going to do it in the future?

Karl Rove won't like it. But the Boy Genius tarnished his own reputation by letting Alberto Gonzales emasculate Ted Olson's briefs back in January. [Administration briefs on the Michigan case: Grutter (Law School) PDF; Gratz (Undergraduate) PDF]

All the polls suggest that the more voters know about racial preferences, the more they despise them.

Republicans control the federal government – the executive branch and the legislative branch. If the Democrats were in power and the Supreme Court dared challenge any part of their proliferating Affirmative Action racial spoils system, it is inconceivable that they would react so passively. (In fact, that's exactly why they passed the 1991 Civil Rights Act – supinely signed, needless to say, by President George I.)

What are the Republicans waiting for?

One hugely popular response: legislation banning legal preferences for illegal aliens.

The ultimate redress: a Constitutional Amendment restating the equal protection clause, Section 1 of the Fourteenth Amendment – and adding "we mean it this time, bozos!"

I invite VDARE.COM readers' further suggestions.

[Steve Sailer [email him] is founder of the Human Biodiversity Institute and movie critic for The American Conservative. His website www.iSteve.blogspot.com features his daily blog.]