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Last month, Judge Patrick J. Duggan of the Federal District Court in Detroit handed down a long-awaited ruling that the University of Michigan is lawfully entitled to consider race in its undergraduate admissions policies. The ruling was made in a discrimination suit that two white students filed against the university back in 1997. Since then, Michigan has amended its admissions policies on race, and it is this new systemwhich awards extra points to certain minority studentsthat the judge determined to be defensible. Duggan found the old policy, a two-tiered system that judged white and minority students by separate criteria, to be unconstitutional.
The case turned on a distinction between considering race as one among many admission factors and making it the definitive factor. A clever ploy, but not one that stands up to scrutiny.
Duggan's decision upheld a system that awards 80 points for a perfect GPA of 4.0, and 12 points for high scores on standardized tests. If a student gains 100 points or more out of a possible 150, he's admitted. Lower GPAs and test scores get fewer points. Meanwhile, black, Hispanic, and American Indian applicants are automatically awarded 20 points. So a minority student with a 3.0 GPA would get 60 points on the GPA scale, but he would also receive an additional 20 points for being a member of a favored minority, thereby giving him the same total score (80) as a white or Asian (an unfavored minority) student with a perfect grade point average. Because the system also awards points to Michigan residents (10) and alumni children (4), it gives the illusion of considering race as one among several factors. But skin color is still conferring an unfair advantage. (As I have written previously, residency and legacy status are also unfair advantages. They, too, have no place in a meritocracy.)
The new Michigan admissions system is indefensible, yet Duggan upheld it by using a magic word: diversity. "A racially and ethnically diverse student body," he wrote, "produces significant educational benefits such that diversity, in the context of higher education, constitutes a compelling government interest." That last phrase is especially frightening, since it's being used to violate the Fourteenth Amendment's equal protection clause. Compelling government interest can be used to justify a multitude of unconstitutional sins.
Interestingly, Duggan was so sure of the state's compelling interest that he had no qualms about expressing himself in blatantly unconstitutional terms. "Although fixed racial quotas and racial balancing are not necessary to achieving this goal, the consideration of an applicant's race during the admissions process necessarily is." This is pure sophistry. The consideration of an applicant's race is racial balancing. Duggan admitted as much when he wrote that affirmative action could continue until the "day when universities are able to achieve the desired diversity without resort to racial preferences." Translation: We're going to break the law, because the goals we wish to achieve are so noble, so beyond reproach, that their achievement is justifiedto quote that famously brutish phrase"by any means necessary."
The ruling, which directly contradicts a 1996 5th U.S. Circuit Court of Appeals decision against affirmative action at the University of Texas at Austin, may take this hotly contested issue to the U.S. Supreme Court. If, as expected, several justices retire in the next few years, Bush has indicated he would appoint so-called "strict constructionists" to the court, which might very well spell doom for Duggan's rubberized justice. One thing should be clear. Diversity is a laudable goal. No one disputes the importance of admitting students from all racial, geographic, and socioeconomic backgrounds to universities. But fairness mandates that such considerations be taken into account caeteris paribusall other things being equal. Thus, Michigan's system would be best if it separated qualifications (grades, essays, and test scores) from qualities (race, geography, class), considering the latter only after the necessary conditions of the former had been met. But such a system is unlikely to prevail in our age of ingrained judicial activism.
Duggan's ruling is just another instance of a judge overstepping his bounds by making, rather than interpreting, law. If you care about democracy at all, that should scare you.