Those Michigan Affirmative Action Decisions: Equal Protection For Whites Endangered

The U.S. Supreme Court has

against the racial quota system used in the
University of Michigan`s undergraduate admissions
program (Gratz
case) [PDF]
and for the racial quota system used in the Law School`s
admission program (Grutter case).

The difference is that “the procedures employed by
the University of Michigan`s Office of Undergraduate
Admissions do not provide for a meaningful
individualized review of applicants,”
whereas the
Law School admission policy does.

The ruling means that racial quotas past muster if
they are subjectively managed as “individualized

do not pass muster if they rely on objective
criteria designed to admit a desired percentage of
preferred minorities, such as the undergraduate school`s
system of assigning 20 points to minorities for skin

The liberal majority (O`Connor, Stevens, Souter,
Ginsberg, Breyer) attach their justification of the Law
School`s quota program to the
Bakke ruling:
“The Court endorses Justice
Powell`s view that student body diversity is a
compelling state interest in the context of university

It is a

story in itself
how Justice Powell`s personal view
has come to be regarded as the Bakke decision.
The majority decision in

was that

racial quotas
are unconstitutional. Justice Powell
expressed his opinion that race could be a factor in
admissions if it contributed to diversity. Proponents of
quotas have since used “diversity” as a ramp for quotas.

The Court has now refined the argument. To escape
being a quota, diversity requires “individualized
a formulation that comes under the
sheltering arm offered by Powell that race can be a

The dissenting opinion in the Law School decision
(Rehnquist, Scalia, Kennedy, and Thomas) points out that
the majority decision, in effect, overturns the Bakke
ruling by undermining both the strict scrutiny test and
the Court`s controlling precedents.

Prior to the Grutter ruling, for race to be a
factor the program had to pass the

strict scrutiny
test. Strict scrutiny requires a “reasonably
precise time limit on the Law School`s use of race in
However, the Michigan program has no
time limit. Grutter permits race to be used on a
permanent basis. Thus, strict scrutiny is subverted.

The Law School

that diversity requires a “critical mass.”
The dissenting opinion notes that the concept of
critical mass is a device to make race “an automatic
factor in most instances and to achieve numerical goals
indistinguishable from


“Stripped of its critical mass veil,”
Rehnquist writes, “the Law School`s program is
revealed as a naked effort to achieve racial balancing.”

A reasonable conclusion from these two rulings is
that a majority on the present Supreme Court believes,
in the words of Ginsburg and Souter, that “centuries
of law-sanctioned inequality”
produced racial
inequalities that require

reverse discrimination
in order to rectify.

This Court majority, however, is not (yet) willing to
exclude white people from equal protection. Therefore,
quotas must be subjectively managed as diversity and
must not openly convey a group privilege based on race.

It remains to be seen whether the system of disguised
and unacknowledged quotas will over time destroy

equal protection for whites,
or whether a more
radical Court in the future will acknowledge the de
facto preferences and render them to preferred
minorities (perhaps by then a majority) under the

doctrine of adverse possession
(squatters` rights).

Paul Craig Roberts is
the author of The

New Color Line: How Quotas And Privilege Destroy
, with Lawrence
M. Stratton.