Strengthening Constitutional Self-Government

No Left Turns

Briefs Against Univ of Michigan

A quick perusal of the federal govt’s amicus briefs against the University of Michigan’s affirmative action policies show that Bush, Ted Olson et al. are playing to win. Notwithstanding my beef that Bush conceded the "compelling state interest" argument by accepting racial diversity as an "important goal" (a point made in his Thursday remarks and reiterated in the _Grutter_ brief), IHMO Bush will win this case 5-4 by directing the Court’s attention solely to the narrowly tailored prong of the strict scrutiny test.

In the _Grutter_ (law school) brief, Olson does this by splitting the tailoring prong into two components. As for the _Gratz_ (undergrad) brief, Lord have mercy on the University of Michigan when it becomes national news--if the Court follows the feds’ brief--that Michigan explicitly violated the _Bakke_ prohibition against quotas (i.e., seats set aside for racial minorities). As late as 1997 or 1998, twenty years after _Bakke_, the university used separate grids and tables (or cells or what have you) for minorities applicants! We all suspected many schools were doing this, but without getting hauled into court, U Michigan and many other colleges have been violating _Bakke_ with impunity.

These years (1995-1998) aside, Olson still goes after Michigan for policies in subsequent years that act as de facto quotas and that unnecessarily use race to achieve diversity when non-racial alternatives exist. I’m not sure how this last argument will hold up, esp. given how recent the high school percentage plans used in California, Texas, and Florida have been in place.

Still, I think Bush wins this one. I’m impressed. I’m not satisfied that the Supremes still think they (and the rest of govt) can decide for themselves when race is bad and when race is good in govt actions. The question is, will a victory in this case help or hinder progress in reading the Constitution as color-blind?

Discussions - 2 Comments

Funny, Rush Limbaugh (often mistaken as a Bush spokesman) has the complete opposite take as yours. To hear Rush talk about this brief, you’d think Bush 43 just pulled a very nasty Bush 41.

Given that the Democrats are seeking a replay of the first Bush downfall, this sort of "No new taxes" buffoonery on Affirmative Action may not bode well for the GOP and Mr. Bush. :(

My question is, if anyone can answer it, what constitutes a "compelling state interest?"

More specifically, is the state’s interest rooted in the Constitution (state or national), or is it rooted in previous acts of racial discrimination? Or, am I simply misunderstanding what "compelling state interest" is?

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