Strengthening Constitutional Self-Government

No Left Turns

Lott and the Michigan Case

The New York Times editorializes this morning that the Bush administration should offer a brief to the Supreme Court in favor of affirmative action, especially in light of Lott’s recent statements:

With Trent Lott’s recent remarks casting doubt on the Republican Party’s commitment to racial equality, there is more reason than ever for the administration to stand up for affirmative action.

They just don’t get it. Just because one member of a party makes an comment which tacitly supports a discriminatory policy does not mean that the proper response is counter with a Justice Department brief in favor of yet another racially discriminatory policy. Two equal protection wrongs do not make a right, particularly where, as here, the affirmative action policies are not tied to any notion of remedying the present effects of past discrimination, but are offered as justified in their own right.

The Times concludes:

In its brief to the Supreme Court, the Bush administration should say willingly what Mr. Lott said under pressure — that it sees carefully drawn affirmative action programs as the best way of opening up opportunity to all Americans.

This, of course, is one of the major problems with affirmative action policies for the sake of diversity at universities: they are not "carefully drawn." It took this lawsuit to get the University of Michigan to abandon its previous admissions policy, under which 100% of White applicants were rejected with entrance GPA and SAT scores in ranges which garnered minority groups approved for preferences nearly guaranteed admission. The new admission policies, while more subtle in their discrimination, are discriminatory nonetheless.

But of course the Times and liberal supporters really don’t care if it is carefully drawn or narrowly tailored. To demonstrate the point, I was on a cable talk show in New York about 6 years ago discussing the Hopwood case, which struck down the admission system at the University of Texas. The Texas system was so blatant they had zones in which applicants were automatically admitted or denied based on nothing other than their scores and race. They even color coded applications so that there was no mistaking which admissions pool the applicant fell into. The leader of a liberal advocacy group who was on the panel with me dismissed the practices at Texas, saying (and I paraphrase) "oh, well that activity was always impermissible. We are concerned with upholding narrowly tailored programs." While this may have been an accurate statement of what was or should have been required under the Equal Protection Clause, it was not an accurate statement of the public views of the group, which had opposed us in the Hopwood litigation--that is, they supported the "always impermissible" policies of the University. Similarly, I do not recall the Times ever saying that an affirmative action plan at a university was wrong because it wasn’t closely tailored, at least not before a court struck the program down. Let us then be serious: the affirmative action policies at universities are not carefully or narrowly tailored, and the Times does not care if they are, so long as the end numbers come out right.

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