On April 1 the Supreme Court will hear oral arguments in the University of Michigan affirmative action cases on whether to overturn the 1978 Bakke decision and ban consideration of race as a factor in university admissions. An impressive display of support for diversity in higher education has come from dozens of corporations, universities, members of Congress and even former military brass, who have weighed in with friend-of-the-court briefs.
At stake is the freedom of the University of Michigan and other universities to use carefully tailored means to achieve a diverse student body. Standing against them are the Bush Administration and a handful of misleadingly named organizations with which the Administration has close ties, such as the Center for Individual Rights (CIR), Linda Chavez’s Center for Equal Opportunity (CEO), and Ward Connerly’s American Civil Rights Institute (ACRI). Key right-wing foundations have bankrolled these groups for the past dozen years. The CIR, which brought the Michigan cases, is also responsible for the notorious Hopwood case, which overturned affirmative action throughout the US Fifth Circuit. Bush’s Solicitor General, Federalist Society veteran Theodore Olson, argued Hopwood on behalf of CIR.
Determined not to further antagonize minority constituencies, whose votes Karl Rove covets, the Bush Administration’s brief argued that the answer is to bring in so-called “percent solutions,” under which fixed percentages of top students are admitted from a state’s high schools. Olson followed White House tactical instructions for advancing the agenda of the right and opted for percent solutions in the friend-of-the-court briefs he submitted on the Michigan case.
Leaving aside the dubious value of these solutions (which have been devastatingly criticized in two recent Harvard Civil Rights Project reports), they may be only a way station on the road to the judicially engineered resegregation of American business and education. CEO is already targeting these “solutions”–which are in effect in Texas, Florida and California–as race-based and therefore unconstitutional. The antidiversity industry is also targeting the outreach efforts that Harvard researchers determined was responsible for maintaining minority enrollments.
The large number of amicus briefs by mainstream institutions in support of the University of Michigan’s position is certainly to be welcomed. But it may be premature to cheer too loudly, if the recent history of another, rather ugly side of this nationwide debate is any indication of what is to come. Over the past few years there has been a determined effort to intimidate the leaders of educational institutions, municipalities, corporations and other entities that have affirmative action programs by sending letters and staging publicity stunts containing veiled threats of costly “reverse discrimination” lawsuits, and even personal liability suits.