Sandra Day O’Connor’s Elitist Decision


Lee Bollinger, president of Columbia University, formerly held the same position at the University of Michigan, which was recently victorious in a key Supreme Court case called Grutter v. Bollinger. Soon after Sandra Day O’Connor declared that racial preferences in college admissions are firmly constitutional, Bollinger jubilantly declared in The Washington Post that the justice’s ruling is “perhaps the most important decision dealing with race in America in a quarter-century.”

Just as O’Connor neglected to mention just who benefits from this kind of affirmative action, so did Bollinger. In The New York Times Week in Review (June 29), reporters Steven A. Holmes and Greg Winter provided the answer.

“According to a study by Anthony Carnevale, vice president of the Educational Testing Service, 74 percent of students at the 146 most prestigious colleges and universities—where competition for admissions is most intense and where affirmative action is practiced—come from families in the top 25 percent of the nation’s socioeconomic scale (as measured by income, educational attainment and occupations of the parents).”

If you wondered why the Supreme Court decision in Grutter v. Bollinger was not happily greeted by those Americans who live “across the tracks” (Duke Ellington’s phrase), Holmes and Winter continue tellingly: “Only 3 percent of the students at these highly selective schools come from the bottom 25 percent of the socioeconomic scale.”

In Newsweek (July 7), Evan Thomas and Stuart Taylor Jr. deflate what Lee Bollinger claims the wondrous O’Connor decision has done for “race in America.” As those reporters say, O’Connor’s “ruling has little impact on average African Americans, relatively few of whom apply to the 100 or so selective colleges in the United States.”

And as for black students in damagingly inferior lower schools—not the few schools that do prove these youngsters can break through “racial gaps” in learning—how many ever think of applying to any college?

O’Connor was not thinking of these huge numbers of “underrepresented” students—whose lives are blunted, in George W. Bush’s term, by “the soft bigotry of low expectations.” Not that his own “No Child Left Behind” legislation is more than a three-card monte game leading to more dropouts.

Celebrating the O’Connor decision and speaking the language of the establishment, Nicholas Lemann, the new head of the Columbia University School of Journalism, quotes O’Connor approvingly in “A Decision That Universities Can Relate To” (New York Times, June 29). In Grutter v. Bollinger, O’Connor wrote: “Universities occupy a special niche in our constitutional tradition.”

Lemann enthusiastically agrees with her point that “selective universities are partly in the business of training a leaderships corps for society, and a society with racial and ethnic tensions can benefit tremendously from having an integrated leadership.”

But in the same issue of the Times, Steven Holmes and Greg Winter quote Lisa Navarette, vice president of the civil rights organization National Council of La Raza, who is less impressed with the elite universities’ “special niche in our constitutional tradition” than with the dead end of many public school systems around the nation. I would include New York City’s.

Says Lisa Navarette, a voice not heard by Sandra Day O’Connor: “If all we do over the 25 years [during which, O’Connor said in her decision, she hoped racial and ethnic preferences would gradually become unnecessary] is affirmative action, then we will still need affirmative action.”

If, in New York, Chancellor Joel Klein, for example, is so obtuse as to continue with social promotion rather than achievement, he will lead many of the city’s students—a very high percentage of whom are black or Hispanic—to a dead end rather than to leadership training in elite universities.

What makes the establishment’s hurrahs for Justice O’Connor’s “breakthrough” so hollow is the counterfeit basis of her ruling in Grutter v. Bollinger. In last week’s column, I demonstrated that the University of Michigan law school is actually employing a quota system that Justice Lewis Powell—who started the Supreme Court on the road to making diversity a compelling state interest—surely would have ruled unconstitutional. Yet, a June 24 editorial in The Washington Post applauds the fact that the law school leaves its affirmative action policy “to the invisible discretion of admissions officers.”

The only thing invisible about the quota system at the law school is that it is unwritten. No wonder. But, as Lewis Powell emphasized in the 1978 Bakke decision: “The guarantee of equal protection [of the laws in the Fourteenth Amendment] cannot mean one thing when applied to one individual and something else when applied to a person of another color. If both are not accorded the same protection, then it is not equal.”

And while Powell supported diversity in college admissions, he emphasized in Bakke that important “constitutional limitations protecting individual rights may not be disregarded.”

That’s why Powell warned against precisely the quota system Sandra Day O’Connor has endorsed at the University of Michigan law school that she insists is not a quota system.

Yet, Lee Bollinger has no difficulty in assuring us, against the evidence, that “nothing precludes the university [of Michigan] from now embracing a non-quantitative method that permits counselors to consider ‘race’ as one among many other factors. And that will be true of every college and university admissions program in the country.” (Emphasis added.)

A Supreme Court affirmation of racial and ethnic preferences for elite colleges and universities—based on a slippery denial of the clear evidence of the violation of “equal protection of the laws”—hardly inspires confidence that the courts or the members of the national elite will focus, in any sustained, meaningful way, on those black, Hispanic, Asian American, Native American, and white kids for whom Sandra Day O’Connor’s triumphant ruling has no meaning they can get hold of.

For another challenging take on elitism in college admissions, see Lani Guinier’s “Saving Affirmative Action” (Voice, July 2-8).

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