David Cole | The Nation

There you go again, Mr. Ashcroft.

Rights lost by some will one day be lost by all.

The FBI has come under harsh criticism in recent weeks for its failure
to act on information that might have enabled it to thwart the September
11 attacks. Rather than deny the criticism, FBI Director Robert Mueller
has embraced it (easy for him to do, since he didn't start on the job
until September 4) and then exploited it to argue that the bureau needs
more power, more resources and fewer restrictions.

Both the criticism and the remedy are misguided. The dots that everyone
now says should have been connected consist of a few leads spread over a
three-year period: a 1998 memo from an FBI agent in Oklahoma suspicious
about some Middle Eastern men taking flying lessons; a July 2001 memo
from a Phoenix agent speculating that Osama bin Laden could be sending
terrorists to flight schools here; and the August 2001 arrest of
Zacarias Moussaoui for acting suspiciously in flight school. Viewed in
hindsight, each points inexorably to September 11. But there is a world
of difference, as any gambler, stock trader or palm reader will tell
you, between perceiving the connections after and before the fact. On
September 10 these three bits of information competed for the FBI's
attention with thousands of other memos, leads and suspicious events
pointing in thousands of other directions. We are engaged in a
nationwide session of Monday-morning quarterbacking.

The remedy is worse. Shifting resources to fighting terrorist threats
makes sense, but freeing the FBI from the minimal restrictions it has
operated under in the past does not. The guidelines governing the FBI's
domestic criminal investigations, which do not even apply to
international terrorism investigations, had nothing to do with the FBI
missing the September 11 plot. And it is likely that the changes in the
guidelines announced by Attorney General John Ashcroft will actually
reduce the FBI's effectiveness in fighting terrorism.

The old guidelines were sparked by revelations that in the 1960s and
'70s, the FBI's COINTELPRO initiative targeted perfectly lawful antiwar,
environmental, feminist and civil rights groups for widespread
monitoring, infiltration and disinformation. The guidelines sought to
remedy the FBI's proclivity for indulging in guilt by association and
conducting intrusive and sweeping investigations of political groups
without any criminal basis. They sought to focus the FBI on its mission,
which, contrary to popular perception, has always been to prevent as
well as to investigate crime.

But even under the guidelines abuses continued. One of the most
prominent involved an investigation of the Committee in Solidarity With
the People of El Salvador (CISPES) from 1983 to 1985. Under the rubric
of counterterrorism, the FBI monitored student rallies, infiltrated
meetings and identified attendees at CISPES events. In the end, the
bureau had collected information on 1,330 groups--including Oxfam
America, the US Catholic Conference and a Cincinnati order of nuns--but
no evidence of crime.

Such investigations are likely to be commonplace in the post-
September 11 era. Ashcroft's guidelines expressly permit the FBI to
conduct some investigations without even a shred of information about
potential criminal conduct. And Congress has so expanded the definition
of federal crimes that requiring a criminal basis is not enough to
forestall political spying. Federal antiterrorism laws of 1996 and 2001
now make it a crime to provide any associational support to foreign
groups we designate as terrorist, even if the support has no connection
whatever to terrorist activity. Under those laws, the CISPES
investigation would have been legal, on suspicion that CISPES was
supporting the Salvadoran rebel movement.

The combined effect of the expanded statute, loosened guidelines and
increased counterterrorism personnel at the FBI will be to bring in
exponentially more information about the populace than the FBI has ever
had. Some of the additional information obtained may, like the isolated
leads developed before September 11, be related to terrorist plots. But
those leads are almost certain to be drowned out by the barrage of
information about innocent political activity.

An intelligence expert on a recent panel with me claimed that what we
need now is "all-source intelligence fusion," meaning a group of
analysts sitting in a room analyzing mounds of data for trends and
patterns. Despite its techno-trendy title, all-source intelligence
fusion is no substitute for good relations with the affected
communities. If the FBI has information that the threat is likely to
stem from Arab sources, it should be building bridges to the millions of
law-abiding Arabs--instead of profiling Arab students without cause,
holding Middle Easterners without charges and selectively registering
all immigrants from Arab countries. You don't build bridges by
infiltrating and monitoring legitimate political and religious activity.

As the shock of September 11 fades, courts are standing up for civil
liberties.

I am beginning to suspect that Nation readers may not fully appreciate the challenges Attorney General John Ashcroft faces. What would you do in his place? Your intelligence agencies had no advance knowledge of the September 11 plot and don't appear to know much more about future attackers. Airport security screeners are letting test bombs and guns pass at alarming rates, and your immigration agency is so hapless that it issued visa extensions to two of the hijackers six months after they died flying planes into the World Trade Center towers. When you consider the threat from their side and the incompetence on ours, it's understandable that Ashcroft has cast his net so wide. He's shooting in the dark. In fact, the expanse of his net is probably inversely proportional to the depth of the intelligence he has received.

But just as with the terrorists themselves, understanding Ashcroft's motives does not justify his actions. To date, despite the thousands of Arab and Muslim immigrants arrested, searched, profiled and questioned, Ashcroft has charged only a single person--Zaccarias Moussaoui--with any involvement in the attacks of September 11. And he was arrested before the attacks occurred. Such broad-brush tactics are unlikely to succeed, for they give notice to potential targets, allowing them to evade detection while alienating the very communities we must work with to identify potential threats who may be living among them.

Ashcroft has shown no signs of getting closer to his target. And the less he finds, the wider he sweeps. He recently announced that he was extending to 3,000 more people his much-criticized initiative to subject male immigrants from Arab countries to "voluntary" interviews, despite the fact that the initial interviews have led to no further charges in the investigation. And having learned how easy it is to use immigration law as a pretext for criminal law enforcement when you lack probable cause, the Justice Department is now preparing to enlist local police officers to help enforce immigration law, a disastrous proposal likely to drive immigrant communities even deeper underground.

The lengths to which Ashcroft will go was revealed most recently by his indictment of Lynne Stewart, a 62-year-old New York attorney who has made a career of courageously taking on clients for whom few other lawyers are willing to risk their reputations. Her most notorious such case was defending Sheik Omar Abdel Rahman in his 1995 criminal trial for conspiring to bomb the tunnels into Manhattan. Now she's charged with providing "material support" to the sheik's organization, the Egypt-based Islamic Group, largely by abetting communications between the sheik--whom prison regulations prohibit from communicating with virtually anyone in the outside world--and others in the group.

The government simultaneously announced that it will make Rahman its test case for its unprecedented initiative to listen in on attorney-client communications. Confidential exchanges with lawyers have long been sacrosanct, because they are critical to any fair legal process. In the past, they could be intruded upon only with a warrant based on probable cause that the communications were intentionally furthering criminal activity, but the new regulations permit monitoring without a warrant or probable cause. But under regulations issued after September 11, the government claims the authority to monitor attorney-client communications without establishing probable cause for believing that the communications are being used for illegal ends, and without obtaining authorization from a judge.

Most troubling, Ashcroft is prosecuting Stewart although she has not been charged with furthering any illegal or violent activity of the Islamic Group, a wide-ranging Islamic political movement that engages in a great deal of lawful activity in addition to terrorism. While many have criticized the government for targeting a lawyer, of far more concern is its criminalization of speech and associations having no connection to terrorism. Unable to link Stewart to any actual terrorist activity in any way, Ashcroft has resorted to guilt by association. As a US citizen, Stewart will at least have an opportunity to defend herself in a public trial. Not so the hundreds of noncitizens still being detained on immigration charges in connection with the September 11 investigation, many long after their immigration proceedings have concluded. Under orders from Ashcroft, they are being tried in secret proceedings closed to the public, press, legal observers and family members.

In a major setback for the Ashcroft agenda, US District Judge Nancy Edmunds on April 3 declared the closed proceedings unconstitutional. She ruled that open trials are a fundamental feature of our justice system and that any closure must be carried out not in the sweeping manner that Ashcroft so favors but through means narrowly tailored to protect national security interests. The government has appealed, arguing that to act in a more narrowly tailored fashion might tip off Al Qaeda to what we do and don't know. But one has to wonder whether the government's real concern isn't that opening the proceedings might tip off the public to just how wildly John Ashcroft is shooting in the dark.

It is already a cliché that the attacks of September 11 "changed everything." One thing they do seem to have changed is liberals. Harvard law professor Laurence Tribe, a stalwart defender of civil rights and civil liberties, has condoned the use of military tribunals and the detention of more than 1,200 people, even though not a single detainee has been charged in connection with the attacks. His colleague Alan Dershowitz has suggested that torture may sometimes be justified, as long as it is authorized by a warrant. And George Washington law professor Jeff Rosen has argued that "the real story after September 11 is that America hasn't yet come close to abandoning any immutable principles of its national identity."

I cite these scholars not to single them out for criticism--all are important and courageous liberal voices--but as illustrations of a larger trend. Even liberals these days seem reluctant to criticize the government's response to the new threat of terrorism.

But a brief overview of what we've done so far in the interest of "homeland security" makes clear that we have already abandoned several of our "immutable principles" and have already begun to repeat the mistakes of the past.

Consider first the USA Patriot Act, an omnibus law of 342 pages enacted under in terrorem threats from Attorney General John Ashcroft, who suggested that if another terrorist incident occurred before Congress passed it, the blame would rest on Congress. The nuts and bolts of the law were worked out in a couple of all-night sessions and approved by large majorities the day they were introduced, even though members could not possibly have read the bill before casting their votes.

The Patriot Act imposes guilt by association on immigrants, rendering them deportable for wholly innocent nonviolent associational activity on behalf of any organization blacklisted as terrorist by the Secretary of State. Any group of two or more that has used or threatened to use force can be designated as terrorist. This provision in effect resurrects the philosophy of McCarthyism, simply substituting "terrorist" for "communist." Perhaps not realizing the pun, the Supreme Court has condemned guilt by association as "alien to the traditions of a free society and the First Amendment itself." Yet it is now the rule for aliens in our free society.

The Patriot Act also authorizes the Attorney General to lock up aliens, potentially indefinitely, on mere suspicion, without any hearing and without any obligation to establish to a court that the detention is necessary to forestall flight or danger to the community. Moreover, most of the more than 1,200 detentions already effected have not relied upon this authority; the detainees are instead held on pretextual criminal charges, as material witnesses and under pre-Patriot Act immigration authority. The government claims that about ten to fifteen of the detained may be linked to Al Qaeda, but what about the other 1,185? We can't know the answer to that question, because the Justice Department refuses to disclose even the most basic information about most of the detainees, such as who they are, what they are being held for or where they're imprisoned. On November 27 Ashcroft reluctantly identified about fifty people in custody on federal criminal charges but refused to identify more than 500 held on immigration charges, or even to put a number on those held as material witnesses or on state charges. Never in our history has the government engaged in such a blanket practice of secret incarceration.

Secrecy has become the order of the day. Criminal proceedings are governed by gag orders--themselves secret--preventing defendants or their lawyers from saying anything to the public about their predicament. The INS has conducted secret immigration proceedings, closed to the public and even to family members. The Patriot Act authorizes never-disclosed wiretaps and secret searches in criminal investigations without probable cause of a crime, the bedrock constitutional predicate for any search. And in a federal court of appeals in Miami in November, the government renewed its defense of the use of secret evidence in immigration proceedings, arguing that it needs the authority more than ever after September 11 to detain aliens by using evidence they cannot confront or rebut.

We can look forward to more secrecy still. A major impetus behind George W. Bush's presidential order authorizing the trial of suspected terrorists in military tribunals was the desire to avoid the constitutional necessity of disclosing classified evidence to the defendant in an ordinary criminal trial. In military tribunals, defendants have no right to a public trial, no right to trial by jury, no right to confront the evidence or to object to illegally obtained evidence and no right to appeal to an independent court. The military acts as prosecutor, judge, jury and executioner, and a death sentence can be imposed by a two-thirds vote of the military officers presiding.

We have used military tribunals to try our enemies in times of war before. There has been no declared war here, but perhaps that can be excused as a technicality. What cannot be excused is the extension of the tribunals to US residents who have no connection to Al Qaeda whatsoever but who are merely charged with "international terrorism," a wholly undefined offense, or of harboring someone so charged. Military tribunals have always been limited to the trial of belligerents--those fighting for the enemy, as the Supreme Court ruled in Ex Parte Milligan during the Civil War. Bush's order, however, allows the President to dispense with a criminal trial for any noncitizen accused of terrorism.

In one setting--attorney-client communications--secrecy will no longer be the rule. At the end of October, Ashcroft asserted the authority to listen in on such highly privileged discussions without a warrant.

Finally, we have succumbed to ethnic profiling. The Justice Department has instructed law enforcement agents across the country to "interview" more than 5,000 immigrants based not on any evidence that they are connected to Al Qaeda or the events of September 11 but solely on their age, gender and country of origin. The list looks suspiciously like what an enterprising lawyer would come up with if instructed to make a list of immigrant Arab men but to make it look like it wasn't based on ethnicity.

After facing some initial, albeit muted, opposition to its first antiterrorism legislative proposal to Congress, the Administration has chosen since then to bypass Congress altogether. It has also bypassed the public, instead instituting radical changes through rule-makings that go into effect the moment they are published and without notice or comment.

The Administration has made no case that its pre-existing authorities were insufficient. We have successfully tried serious terrorist crimes in open court with all the protections that customarily apply, without regard to whether the defendants were citizens or aliens. Before the Patriot Act, we could deport aliens who supported terrorist activity in any way and could detain aliens who posed a threat to national security or posed a risk of flight. And we had authority to conduct wiretaps and searches in foreign intelligence investigations without probable cause of a crime, as long as that authority was not used as an end-run around the constitutional rules that govern criminal investigations. The government has not even tried to show that the absence of any of its newfound powers contributed to its failure to identify and thwart the September 11 attacks.

Rather, what the Administration has said, time and time again, is that we are "at war." Apparently this statement renders any further argument unnecessary. Thus, Ashcroft tells us that because we are at war, "foreign terrorists who commit war crimes against the United States...are not entitled to and do not deserve the protections of the American Constitution." But putting aside whether we are "at war" without a declaration of war, the bigger problem is that we can't know whether someone is a "foreign terrorist" until those charges are proven in a fair proceeding. The military tribunals eliminate virtually every procedural check designed to protect the innocent and accurately identify the guilty.

These initiatives have sparked opposition from unlikely quarters. Police officers in Portland, Oregon, have refused to take part in the interviews of the 5,000 immigrant men, citing local laws against racial profiling. Spain has said it will not extradite eight men charged with complicity in the September 11 attacks unless we promise not to try them in military tribunals. Even William Safire has called the military tribunals "kangaroo courts." And on Capitol Hill, Republican Orrin Hatch has joined Democrat Patrick Leahy in calling on Ashcroft to answer questions before the Judiciary Committee about his recent executive initiatives.

So why are so many liberals satisfied with the government's response? Why hasn't there been a louder outcry about the measures adopted? Why hasn't the Administration been asked to justify its newfound authorities on a power-by-power basis? For one thing, we are afraid, and in times of fear we crave security above all. For another, in the face of an attack we naturally and properly seek to stick together, to show a united front. But in times of fear and crisis we also panic. And panic causes us to abandon our principles.

So have we abandoned any "immutable principles," as Jeff Rosen calls them? Well, political freedom has given way to guilt by association. Due process has given way to detention on the Attorney General's say-so. Public scrutiny has given way to secret detentions and secret trials. Equal protection under law has given way to ethnic profiling. And we're only three months into this. We can't afford to let liberal vigilance give way to complacency.

Nothing tests our commitment to principle like terrorism. Before September 11, America banned assassinations of foreign leaders; now the Administration is considering abandoning that prohibition. Before September 11, more than 80 percent of the American public felt that racial or ethnic profiling was wrong; today, that consensus is rapidly eroding, as FBI agents detain dozens of suspects solely because of their Arab or Muslim identity and associations. Ten years ago, Congress repealed McCarran-Walter Act provisions making mere membership in various political organizations a deportable offense. Now the Administration seeks authority to detain and deport aliens accused of virtually any tie to a terrorist group--defined expansively to include any group that has or might use weapons.

The September 11 terrorist attack undoubtedly warrants a comprehensive review of our intelligence and law enforcement capabilities. But what is needed is better-coordinated intelligence and more targeted law enforcement, not broad-brush legislation that simply throws more power at government agencies that have already shown a proclivity to abuse the power they have.

This country has a long tradition of responding to fear by stifling dissent, punishing association, launching widespread political spying and seeking shortcuts around the Constitution. Few Americans opposed the imprisonment of antiwar dissenters during World War I, the internment of Japanese-Americans during World War II or the anti-Communist laws of the McCarthy era. We now acknowledge that those initiatives were wrong, but have we learned from our mistakes?

To some extent we have. No one has yet proposed making membership in a Muslim organization a crime, detaining all Americans of Arab descent or Muslim faith, or criminalizing dissent. But in 1996, after the Oklahoma City bombing, we resurrected guilt by association, criminalizing any material support to any foreign group deemed terrorist by the Secretary of State, even if that support consisted of sending human rights pamphlets to an organization fighting a civil war. And now the INS seeks unprecedented authority to lock up and deport as a "terrorist" any alien remotely associated with a any group that has ever used force--even if the alien himself has no connection to violent acts.

And all indications are that the FBI continues to operate as if guilt by association is the rule. While the September 11 terrorists were training for and coordinating their conspiracy in Florida, the FBI was spending vast resources investigating Mazen Al Najjar, a Palestinian professor from Tampa who spent three and a half years in detention on secret evidence and charges of political association. Al Najjar was released last December when an immigration judge found no evidence that he posed a threat to national security. And while the terrorists were conspiring in New Jersey, the FBI focused its efforts on Hany Kiareldeen, a Palestinian in Newark detained for a year and a half on secret evidence for associating with terrorists. He was freed after immigration judges flatly rejected the government's charges as unfounded; the FBI's principal source was apparently Kiareldeen's ex-wife, with whom he was in a bitter custody dispute and who had filed several false reports about him.

The government already has adequate powers to combat terrorism. It has authority to wiretap any person suspected of working for a foreign government or organization, without any criminal predicate whatsoever. It can prosecute and freeze the assets of those who provide aid to terrorist organizations. It can bar entry to members of terrorist organizations, and it can detain and deport any alien who has engaged in or supported a terrorist act.

When, in less turbulent times, a bipartisan National Commission on Terrorism appointed by Congress recommended steps to improve our response to terrorism, it advocated none of the measures now advanced by Attorney General Ashcroft. Its advice was to streamline and coordinate existing authority, but that entails hard work and substantial turf battles; it's far easier, but far less effective, to give the FBI still more power to spy on the American people.

One of the most surprising decisions of the Supreme Court term just concluded was Justice Antonin Scalia's ruling in favor of a criminal defendant who claimed that a thermal imaging device violated his Fourth Amendment rights. The police used the device to measure the heat leaking from Danny Kyllo's house and inferred from that information that he was growing marijuana inside with heat lamps. Indeed, he was, as the subsequent search revealed: more than 100 plants' worth.

In the most unlikely collaboration of the year, Justices Scalia and Clarence Thomas joined forces with Justices Ruth Bader Ginsburg, Stephen Breyer and David Souter to rule that use of the thermal imaging device was an unconstitutional search. The decision is surprising in several respects--and not just because it rules for a drug defendant. It announces a bright-line rule barring the use of high-tech devices to intrude upon the privacy of the home, in an era where the Court has largely abandoned bright-line rules except where they benefit the police. It speaks in majestic tones about protecting privacy from the onslaught of technology, from a Court that has all but given up on privacy in favor of crime control. And it reaches a result that was by no means foreordained. This was a close case, as Justice John Paul Stevens's quite reasonable dissent shows.

So what's going on here? Should liberals (or drug manufacturers) start looking to Justices Scalia and Thomas for protection of criminal defendants' rights? I'm afraid not. This is a rare instance of an alliance between liberals and libertarians, united here in support of the sanctity of the home. For Scalia and Thomas, at least, it all comes down to property. Step outside, and you're fair game.

The dispute centered on whether the use of the thermal imaging device was a "search" that invaded Kyllo's "reasonable expectation of privacy." The police argued that the device merely registered information from the outside of the home. A police officer's observation that snow melted more quickly on certain parts of a roof would provide the same information, but no one would call that a "search." Since the information came from outside the house, it invaded no privacy.

Justice Scalia rejected that approach, and concluded that whenever the police use "sense-enhancing technology" not in general public use to obtain information that they otherwise could not have gathered without entering the home, they have conducted a search, for which they must have probable cause and a warrant. His opinion waxes eloquent on the home as castle and the need to protect citizens from the intrusions of modern technology. (None too soon, as police are already working on ultrasound technology for houses, although one wonders how they're going to apply petroleum jelly to aluminum siding.)

In its attempt to protect privacy from advancing technology, the decision is a landmark and will stand along with the Warren Court's 1967 decision in Katz v. United States, which extended the Fourth Amendment to include wiretapping. But in another respect, the decision marks an ironic return to the pre-Katz world. Before Katz, Fourth Amendment law was governed by property notions, leading the Court to make ridiculous distinctions between listening devices attached to an outside wall with a thumbtack, which were said to invade property and require a warrant, and similar devices merely taped to the wall, which were deemed not to invade property and therefore not to require a warrant.

Katz importantly held that the Fourth Amendment protects "people, not places" and eschewed arcane property questions for an inquiry into whether the government had invaded a person's "privacy." But Kyllo brings us back full circle, because without any reasoned explanation it expressly limits its protection to homes. Justices Scalia and Thomas's libertarian instincts stop at the doorstep. A man's home may be his castle, but in the view of these Justices, at least, the streets still belong to the police.

To write a letter on behalf of Juan Raul Garza, as well as the other prisoners currently
on state and federal death row, visit our Death Row Roll Call.

On March 27, a federal district court struck down the University of Michigan Law School's affirmative action admissions plan, ruling that the school's interest in a diverse student body did not justify using racial preferences. This past December another court in the same district reached the exact opposite result, finding the university's parallel affirmative action program for undergraduates was justified by diversity.

These diametrically opposed rulings on a single university's affirmative action programs perfectly mirror the current division in the nation's courts. Affirmative action, a near-universal practice in universities across the nation, is under serious legal attack. Disappointed white applicants have sued universities in Georgia, Washington and Texas as well as Michigan.

As in Michigan, the lower courts in these cases have divided sharply, so it is only a matter of time before the none-too-hospitable Supreme Court takes up the issue. The main point of disagreement concerns whether diversity is a sufficiently "compelling interest" to justify race-conscious admissions. There is a strong case for diversity-based affirmative action. But another justification, not generally pressed by the universities, offers a more cogent and morally persuasive rationale for affirmative action: society's interest in integration itself.

Since 1978 affirmative action in higher education has rested on the slimmest of reeds--a lone opinion from a Justice who could not attract a single other Justice to his views. In Board of Regents of the University of California v. Bakke, a divided Supreme Court struck down a medical school admissions program that set aside a predetermined number of seats for minority applicants. Four Justices deemed any consideration of race illegal under a federal statute that prohibits discrimination by entities receiving federal funds, while another four concluded that the program was a valid response to broad societal discrimination.

The decisive opinion in the Bakke case was that of Justice Lewis Powell. He voted to invalidate the University of California's program, but he also stated that racial preferences are sometimes permissible, citing with approval Harvard's affirmative action program, in which, in the name of diversity, race was considered as one "plus factor" among many, and all applicants competed for all openings. Harvard's program was not even at issue in the case, but Justice Powell's views about it have guided universities ever since.

Subsequent Supreme Court opinions have appeared to diverge from Justice Powell's analysis. For example, Justice Sandra Day O'Connor, a critical swing vote, explicitly rejected diversity as a justification for an FCC affirmative action program, stating: "Modern equal protection has recognized only one [compelling state] interest: remedying the effects of racial discrimination." The FCC's interest in broadcast diversity, she reasoned, was "simply too amorphous, too insubstantial, and too unrelated to any legitimate basis for employing racial classifications." Her opinion was in dissent, but would probably garner five votes today. In other opinions, however, Justice O'Connor has cited Justice Powell's Bakke opinion with apparent approval.

One thing is certain: The argument for diversity finds virtually universal acceptance in academe. More than 360 higher education institutions signed on to briefs defending the University of Michigan's affirmative action program. And for good reason: In our increasingly diverse society, the ability to communicate and understand across racial lines is an essential part of citizenship, and teaching that skill requires a diverse setting. Not considering race in the diversity mix would effectively penalize minorities by denying them benefits that Iowans, violinists, potential donors' children and synchronized swimmers receive.

The usual response is that the Fourteenth Amendment treats racial classifications differently. But the equal protection clause does not prohibit all consideration of race. In its recent voting rights cases, for example, the Court held that race may be considered as one factor among many in redistricting, as long as it is not the "predominant motive." The redistricting process necessarily considers all sorts of factors as proxies for likely political allegiances, and adding race to the mix does not raise the same concerns as other kinds of race-conscious decision-making. Similarly, the search for diversity necessarily considers many factors as proxies for intellectual and cultural diversity, and race should be permissible as one among many.

Ultimately, however, integration itself may be a stronger justification for affirmative action than diversity. An integrated student body undoubtedly adds to diversity. But so does admitting violinists, and surely there is a stronger argument for admitting African-Americans than violinists. Higher education is one of the few arenas in modern life where racial integration remains a realistic possibility. Despite the demise of Jim Crow, most of us continue to live, work, socialize and worship in effectively segregated settings. College student bodies, by contrast, can be integrated because they are consciously selected and are not predetermined by geography or class. Integration in higher education in turn teaches us that integrated communities are possible, and that living in such communities can break down the deep barriers that continue to divide the races. At the same time, because a college degree is essential to professional success, integration in higher education is necessary to any measure of integration beyond.

The Court and the country have failed to live up to the promise of Brown v. Board of Education. The last thing we should do is turn the Constitution into a barrier to one of the last remaining arenas of true integration in America.