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The Red Herring Decision
by Michael Nevin, Jr.
30 June 2003

By upholding Michigan Law School's affirmative action program, the Supreme Court held that the 14th Amendment can be suspended due to a “compelling interest” in diversity.

Recently the Supreme Court handed down two “separate but equal” decisions regarding the University of Michigan’s undergraduate and law school admissions policies.  The Gratz decision struck down the objective criteria of awarding points to preferred minorities in undergraduate admissions.  The Grutter decision upheld the law school’s admission policy.  In the majority opinion, the court said the Constitution “does not prohibit the law school’s narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body.” 
Both decisions allow for a subjective policy to give preferential treatment, or what is euphemistically called “affirmative action,” to certain minority applicants.  At the University of Michigan, preferred minorities are African-Americans, Hispanics, and Native Americans.  An immigrant from Bosnia, Afghanistan or Vietnam can expect no favor.  
The 1954 landmark Supreme Court decision, Brown v. Board of Education, overturned the earlier Plessy v Ferguson (1896) decision to allow “separate but equal” public schools for white and black students.  The Warren Court declared in 1954 that segregation based on race denied black children equal protection under laws guaranteed by the 14th amendment.  Almost fifty years later, we seem to be taking a backward step.  Today, race can and will be used as an independent factor in determining the student body.
The 2003 Supreme Court has determined that separate admission policies for preferred and non-preferred applicants can stand.  The court, in essence, has found that the 14th Amendment, equal protection under the law, can be suspended due to a “compelling interest” in diversity.  College administrators will have hegemony over multifarious goals as they trade point systems for more insidious admissions policy.
The Grutter decision is only a Red Herring.  The failure of the public schools to adequately prepare students for college is a wake-up call and the real reason behind underprivileged kids struggling in academics.  Educators, parents, and an apathetic public share the blame.  The Press Democrat (Santa Rosa, Ca) ran an editorial:  “The nation has not reached that moment in its history when equal opportunity to education exists for all people, regardless of race.”  Wrong!  Equal opportunity exists but the low standards being set and lack of academic accountability have robbed many students of advanced opportunity. 
Justice Clarence Thomas, raised in a poor family in Georgia, is a role model who happens to be an audacious foe of affirmative action.  In his dissent in the Grutter decision Thomas states, “No one would argue that a university could set up a lower general admission standard and then impose heightened requirements only on black applicants.  Similarly, a university may not maintain a high admission standard and grant exemptions to favored races.”  Thomas, after quoting the abolitionist, Frederick Douglass, goes on to say, “Like Douglass, I believe blacks can achieve in every avenue of American life without the meddling of university administrators.”
Martin Luther King, Jr. declared on August 28, 1963: “I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin, but by the content of their character.”  Giving preference based on race discriminates: pure and simple.   
A multi-ethnic university is a good thing.  Diverse ideas and backgrounds, on the same intellectual level, only add to the strength of the overall learning environment.  However, unqualified students face the greatest risk of failure.  Many students who fall in the category of preferred minority status earn admission without special treatment.  Do they deserve the stigma this policy promotes as people question their enrollment?
Proponents of affirmative action play the race card as they run roughshod over the Constitution.  They promote a perpetual state of victimhood for preferred minorities.  It’s a shame the majority on the Supreme Court fell for this mendacious argument.  It’s a bigger shame that public middle and high schools won’t be forced to actually prepare all students for the real world.

Michael Nevin is a California law enforcement officer.

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