In a 5-4, near-party-line decision that gives new meaning to the phrase "bitterly divided," a federal appeals court has teed up for Supreme Court review by next summer what could become the most important case ever on racial affirmative-action preferences. The May 14 decision also dramatizes why so many of the senators now warring over judicial selection proceed on the assumption that in ideologically charged cases, most (or at least many) liberal and conservative judges are driven more by political preference than by legal principle. And it underscores the large impact the next Supreme Court appointment could have on the national agenda.

The majority opinion, written by Boyce F. Martin Jr., the Carter-appointed chief judge of the U.S. Court of Appeals for the 6th Circuit, upheld racial preferences in admissions at the University of Michigan Law School. This opinion, supported by four Clinton appointees, came despite the fact that the court's fifth Clinton appointee, Judge Ronald Lee Gilman, described these preferences in dissent as a "de facto quota" that give such "grossly disproportionate weight to race and ethnicity" as to violate a seminal 1978 Supreme Court precedent. Reagan-appointed Judge Danny J. Boggs dissented more forcefully, joined by Judges Alice M. Batchelder and Eugene E. Siler Jr., both appointees of the first President Bush.

A prediction: The Supreme Court will almost certainly reverse the 6th Circuit decision, Grutter v. Bollinger—which conflicts squarely with a 1996 decision by the 5th Circuit called Hopwood v. State of Texas—and will strike down the blatant preferences used by the law school. It may well do so on narrow grounds, leaving undisturbed the less egregious racial preferences that have become pervasive at selective universities across the nation. But it might also issue a broad ban on all, or almost all, such racial preferences in admissions, as the 6th Circuit dissenters (excepting Gilman) would have done.

The 1978 precedent, University of California Regents v. Bakke, struck down by 5-4 a California medical school's use of a rigid numerical quota to increase minority admissions. But one member of the majority—Lewis F. Powell Jr.—suggested in a split-the-baby opinion that, while the Constitution bars "preferring members of any one group for no reason other than race or ethnic origin," it might allow a state university to pursue "a diverse student body" by considering race as one of several "plus" factors that could "tip the balance" between closely matched applicants. Powell's opinion, together with that of the four dissenters, has caused Bakke to stand for the proposition that at least relatively modest admissions preferences are constitutionally proper.

While the Supreme Court's warring liberal and conservative blocs will no doubt be deeply split in this case, the justices would have a hard time topping the ugliness of the liberal-conservative bickering that has turned the 6th Circuit into a mud-wrestling pit. In a detailed "procedural appendix," Boggs and Batchelder strongly implied that Chief Judge Martin had manipulated the handling of the appeal to keep it from going to the full court until after two other Bush appointees had retired last summer. (If both had participated and sided with Boggs, the vote would have been 6-5 to strike down the preference program instead of 5-4 to uphold it.) This implication provoked Clinton-appointed Judge Karen Nelson Moore to accuse Boggs and Batchelder of a "shameful" breach of confidentiality that "marks a new low point in the history of the 6th Circuit." She said that this breach would "severely undermine public confidence in this court" and "irreparably damage the already strained working relationships among the judges."

Other than that, these folks seem to get along just fine.

Whatever the merits of his indictment of Martin, Boggs's discussion of the statistical evidence showing the "sheer magnitude" of the racial preference used by the law school was undisputed by the majority and endorsed by Judge Gilman, the Clinton appointee who broke ranks and joined the dissenters. In Boggs's words:

  • "Under-represented minorities [blacks, Hispanics, and American Indians] with a high C to low B undergraduate average are admitted at the same rate as [white and Asian] applicants with an A average with roughly the same LSAT scores.... The figures indicate that race is worth over one full grade point of college average or at least an 11-point and 20-percentile boost on the LSAT."
  • "Taking a middle-range applicant with an LSAT score [of] 164-166 and a GPA of 3.25-3.49, the chances of admission for a white or Asian applicant are around 22 percent. For an under-represented minority applicant, the chances of admission (100 percent) would be better called a guarantee of admission."
  • "Indeed, the law school concedes that its racial preference is sufficiently heavy that 3 out of 4 under-represented minority students would not be admitted if all students were truly considered without regard to race."

    Martin stressed this same ratio in his opinion for the majority by citing an expert witness's testimony on behalf of the law school: If the school could not take race into consideration, "under-represented minority students would have constituted only 4 percent of the entering class of 2000, instead of the actual enrollment figure of 14.5 percent." Martin argued that these numbers showed racial preferences are the only way to admit enough black, Hispanic, and Native American students to form a "critical mass," which he said is needed so that these minorities would not feel isolated and could contribute to academic diversity by bringing "the experience of being an African-American, Hispanic, or Native American in a society where race matters." Martin also credited testimony by admissions officers at the law school that it "does not use quotas."

    All four dissenters responded that the law school's idea of a critical mass—47 "under-represented minority" students out of 341 enrolled in 1998, 46 out of 339 in 1997, 44 out of 319 in 1996, and 46 out of 340 in 1995—looked like a quota to them. "To the law school," Boggs added, "10 under-represented minority students, each a child of two-parent lawyer families, are considered to be diverse, while children whose parents are Chinese merchants, Japanese farmers, white steel workers, or any combinations of the above are all considered to be part of a homogeneous (and 'over-represented') mass." Similarly, Boggs doubted the notion that "true diversity is served by giving massive preference to a student whose parents or grandparents came from an upper-class suburb of Buenos Aires, over those whose grandparents immigrated from similar areas of Paris, Munich or Tokyo, or, indeed, over a person whose grandparents survived the labor camps of Hitler or Stalin."

    Another Boggs point worth quoting: "Because academic credentials are significantly correlated with parental income, social status, and education, the malign effects of discriminatory policies like the law school's will rarely fall upon the children of the educators who craft them or the judges who rule upon them." They will fall upon whites and Asians with less money and fewer educational opportunities than the academic and legal elites—and with fewer advantages than many of the minority applicants upon whom racial preferences are bestowed. People such as Barbara Grutter, the (white) lead plaintiff in the case. By the law school's own account, it would have admitted her but for the color of her skin.

    Why am I confident that Grutter will win her case in the Supreme Court? Read Judge Gilman's dissent. Here is a Clinton appointee who says that modest racial preferences for minorities are "clearly constitutional," but that the law school's immodest preferences are just as clearly unconstitutional—a "two-track system that is functionally equivalent to a quota" and that "applies one standard for minorities and another for all other students." Can you imagine a majority of the current nine justices upholding the system thus described by Gilman? I can't.

    Would it be wise for the Court to go beyond striking down this quota system and to impose a flat and far-reaching ban on all use of overt racial preferences in state university admissions? I might say no if I still believed that (as I wrote in 1996) such a ban could "produce something close to de facto resegregation of most elite universities." But I don't still believe that.

    In recent years, as detailed in my column of April 14, 2001, universities and politicians have found ways to recruit and admit substantial numbers of well-qualified minority applicants even when overt racial preferences are banned—as they have been banned since 1996 in both Texas (by the Hopwood decision) and California (by the voters). And in recent decades, the academic elites who run the top universities have shown that when given a green light to discriminate a little bit, they discriminate a lot.

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