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Supreme Court Decision Day By: Harold Johnson
FrontPageMagazine.com | Sunday, March 30, 2003

On Tuesday (April 1), the U.S. Supreme Court will hear challenges to the University of Michigan "diversity" schemes that give explicit advantages to racial minorities in the admissions process.

The ideal result would be for Bakke vs. Regents of the University of California to be affirmed as law of the land.

I don't mean the confusing, self-contradictory Bakke ruling that the High Court handed down 25 years ago this June. While purporting to outlaw quotas, that decision said race could still count, in some ill-defined way, in university admissions.   This was a recipe for quotas by another name, and Michigan's affirmative action commissariat treats it as holy writ.

No, the Bakke holding that should be embraced is the more principled decision that California's Supreme Court issued earlier in the same case. Without any hemming, hawing or half-heartedness, the Golden State's highest court said that giving an applicant extra consideration because of color is unconstitutional, period. Under this Bakke, Michigan's policy of racial favoritism would fall.

As every law student knows, Alan Bakke, a Caucasian, was turned away by UC Davis' medical school, while students with lower grades and test scores were let in under a minority set-aside program.  Less familiar is the 6-1 decision by which the California Supreme Court found the set-asides invalid.  It was this decision that was taken for review by the U.S. Supreme Court.   Ruling that Bakke should be let into medical school, the California justices said the Constitution's guarantees of equal justice protect people of all colors, even white males.  The notion "that the Constitution sanctions racial discrimination against a race -- any race -- is a dangerous concept fraught with potential for misuse in situations which involve far less laudable objectives than are manifest in the present case," the majority declared.

The court pointed to some practical dangers in reverse discrimination: "The divisive effect [of race-based admissions decisions]...raises serious doubts whether the advantages obtained by the few preferred are worth the inevitable cost to racial harmony."   Moreover, "rewards and penalties, achievements and failures, are likely to be considered in a racial context through the school years and beyond." And once established, racial preferences "will be difficult to alter or abolish; human nature suggests a preferred minority will be no more willing than others to relinquish an advantage once it is bestowed."

The California Bakke ruling was as notable for who wrote it as for what it said. The author was Justice Stanley Mosk, "the last of the New Deal liberals in California public life," as a San Francisco Chronicle legal reporter wrote when Mosk died two years ago at age 88.   Named to the state Supreme Court in 1964 by Gov. Edmund G. "Pat" Brown, Mosk had been a leader in California Democratic politics.   On the court, he won national renown as a formidable "progressive" with rulings protecting the environment, consumers and tenants.

He also proved that a stalwart liberal -- at least one who is honest and true to his professed principles -- can oppose racial preferences without apology.  Indeed, Mosk believed that this was what civil rights was all about -- ending racial distinctions in the law.   "One of the central themes of Stanley's most important opinions -- and I think it can also be seen in his controversial opinion in the Bakke case -- is the transcendent importance he attached to simple fairness," says California appellate justice Anthony Kline, who clerked at the state Supreme Court early in Mosk's tenure.

Tom Daschle, Ted Kennedy and other quota enthusiasts of today's Democratic Party can bluster about their regard for African Americans, but none has a record on civil rights that approaches Stanley Mosk's.  Arguably, no jurist in American history has been a stronger champion of equal treatment for people of all races. 

In 1947, as a judge of the Los Angeles County Superior Court, Mosk struck down whites-only real-estate clauses in a Los Angeles neighborhood --- a year before the U.S. Supreme Court outlawed "restrictive covenants" nationally. 

"This court feels there is no more reprehensible un-American activity than to attempt to deprive persons of their own homes on a master race theory," Mosk wrote in the case, which involved white homeowners trying to eject blacks from their neighborhood.  "Our nation just fought against the Nazi race superiority doctrines. One of [the African Americans in the case] was in that war and is a Purple Heart veteran. This court would indeed be callous to his constitutional rights if it were now to permit him to be ousted from his own home by using 'race' as the measure of his worth as a citizen and a neighbor."

Mosk continued to stand up for colorblindness as state attorney general in the early 1960s.  He issued opinions denouncing discriminatory licensing and school segregation, and threatened to block a PGA tournament on a public golf course if qualified African American players were barred from taking part.

On the state Supreme Court, he delivered a milestone ruling against racial discrimination in jury selection.

For Mosk, the fact that Alan Bakke was white didn't make him less deserving of fairness.  Mosk believed in the value of a diverse student body, but insisted that divisive, color-coded admissions was not the fair way to achieve it. Rather, as his Bakke opinion put it, a university could "recruit and provide remedial schooling for disadvantaged students" -- but the efforts must be directed at needy students "of all races."

Unfortunately, Mosk's emphasis on the "equal" in equal rights was not seconded by Justice Lewis Powell when the Bakke case reached the U.S. Supreme Court. A plurality of justices ruled that Bakke should take his place at UC Davis, but Powell shrank from declaring categorically that people should not be judged by their racial bloodlines.   His concurring opinion, which has been treated as controlling, famously endorsed using race as a "factor" in admissions.  Trouble is -- as Mosk, with his moral clarity, understood  -- when race is a "plus factor" for one student, it becomes a "minus factor" for applicants of a different color.

The historic core principle of civil rights is that no one should be treated better or worse than another because of race.  The Supreme Court should use the Michigan cases as an occasion to declare that Justice Powell got it wrong, and Justice Mosk got it right.

Harold Johnson is an attorney with the Pacific Legal Foundation.

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