This weeks victory for affirmative action is real but precarious. The Supreme Court could well have chosen to end, not mend, efforts to promote racial diversity. Instead, Justice Sandra Day OConnor the most important voter in America emerged as the swing vote in a ruling consistent with the Bakke case, the Supreme Courts 1978 landmark in this arena.
The current ruling split the baby allowing one diversity program while forbidding another. As in the Bakke case, the court majority opposes anything that suggests a quota system, which, in this instance, has been refined to mean anything that automatically gives an advantage based on race. Undergraduate-admission officers at the University of Michigan had given a boost in points to applicants from underrepresented minorities. That is now illegal. But the justices upheld the universitys law-school admissions policy, which considers race as one factor when evaluating applicants.
What the ruling means in California is uncertain and probably limited, because voter-approved Proposition 209 made a ban on affirmative action part of the California Constitution. But the state Department of Education is studying this weeks ruling with the aim of tweaking state admissions policies in the direction of enhancing racial diversity.
Even nationally, this ruling is only as enduring as its 5-4 court majority, which once again throws into sharp focus upcoming appointments to the nations high court, especially given speculation that Chief Justice William Rehnquist could be the next to retire.
One scenario has President Bush appointing White House counsel Alberto R. Gonzales, who would be the courts first Latino, to replace Rehnquist. Gonzales potentially moderate rulings on affirmative action and abortion rights leave conservatives fearful that he would strengthen the narrow court majority that sometimes bends against them on these issues.
Perhaps just as important is the composition of lower courts, where Bushs administration continues to push the judiciary to the right. The law schools policy also was upheld 5-4 at the appellate level, where presidential appointments dont receive the same level of scrutiny.
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The governments brief promotes strictly race-neutral diversity policies (citing the examples of Texas, Florida and California) that have not, in fact, been unqualified successes and suggests remedies such as vigorous recruiting and lowering admissions standards for all. Or giving applicants credit for such things as a history of overcoming disadvantage, geographic origin, socioeconomic status, challenging living or family situations, reputation and location of high school, volunteer and work experiences, exceptional personal talents, leadership potential, [and] communications skills.
Its irresistible to ponder which of these might have helped an unexceptional scholar named George W. Bush get into Yale, while more qualified applicants were perforce turned away. Perhaps young George had a knack for overcoming advantage or dealing with the challenge of wealth and privilege.
In the end, states the Bush administration brief, this case requires this Court to break no new ground to conclude that [the University of Michigans] race-based admissions policy is unconstitutional.
Its easy to envision a future Bush Supreme Court feeling exactly the same way.