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Supreme Court Must Resolve Diversity Question By: Marc Levin
FrontPageMagazine.com | Friday, December 15, 2000

CHERYL HOPWOOD from Texas, Katuria Smith from Washington State, and Jennifer Gratz from Michigan have something very unique in common: they are three white women who were rejected from their states' most prestigious law school in the name of "diversity." The three are now at the center of lawsuits that may forever end racial preferences in university admissions.

While Hopwood was vindicated by a Fifth Circuit ruling which is still being appealed, Smith lost her case last week and Gratz has just received a split and hollow verdict. In addition, the University of Georgia, like Texas, has appealed a recent lower court ruling that struck down its system of racial preferences.

In recent years, a handful of similar suits have been heard by lower courts, but failed to reach the Supreme Court because of procedural flaws or out-of-court settlements. Hopefully, the Court will decide to hear one of these cases and thereby resolve the confusion created by the many conflicting lower court rulings that have put different states under different legal regimes.

It is no surprise that our institutions of higher learning are so perplexed, and society as a whole is so exasperated, concerning the use of race to achieve the goal of "diversity"; The Fifth Circuit Court of Appeals in the Hopwood case ruled that the University of Texas could not classify individuals by race or ethnicity, nor give an applicant's race any consideration in the admissions process, even if the school is driven to do so to ensure a racially diverse student body. On the other hand, the Ninth Circuit Court of Appeals in the Katuria Smith case recently ruled for the University of Washington, noting that its use of race to achieve diversity did not violate the Constitution. In both cases, the courts founds that the applicants that were denied admission had significantly higher grades and test scores than most of the minority students admitted.

If the courts are split on the use of race in the admissions process, the public is understandably bewildered. On the one hand, the racial advocacy groups, such as the NAACP and the League of United Latin American Citizens, argue that one's race should not be a factor in criminal profiling by police, jury selection, or criminal sentencing. Yet, these same groups argue that race should be a factor in university admissions, public contracting and employment opportunities. In these cases, they argue, race tells much about the individual. It appears that the racial advocacy groups believe that there are "good" racial classifications and "bad" ones as well; there are times when race should matter, and times in when it should not.

There is also the "diversity" question that bedevils university administrators and must be resolved sooner or later by the Supreme Court.

In the 1978 case of Bakke v. Board of Regents of the University of California, the Supreme Court offered only a muddled answer to the question of whether the pursuit of diversity justifies racial preferences. In Bakke, an evenly divided Court struck down the medical school's admission quota for minority students, but Justice Lewis Powell's decisive concurring opinion declared that the pursuit of a "diverse student body" was a valid reason to use race as a "plus" factor. That opinion, which gave rise to systems of racial preferences that went well beyond conferring a small tie-breaking advantage on minority applicants, remains controlling because the Court has not since spoken on racial preferences in higher education.

When it does revisit this question, the Court will, in order to sanction preferences based on achieving diversity, be forced to conclude that one's skin color tells us much about an individual. But is this true? If it is true, what personality characteristics and life experiences do all black students have in common that are not to be found in their white classmates?

Are there distinct personality characteristics and life experiences that are found in all Hispanics? All Jews? All Asians? If there are, what are they?

Of course, when asked to list traits unique to blacks or Hispanics, them diversity mavens go silent.

That is because skin color, increasingly, is a meaningless genetic characteristic in our multi-racial nation. It does not mean someone is smart or ignorant, hard working or lazy, sensitive or unfeeling, artistic or athletic, reads novels or TV Guide. Ultimately, people are individuals, whose identity is shaped by innumerable characteristics and experiences. All policies that classify people and then treat them differently based on race are inescapably a form of intolerable stereotyping. Achieving diversity in this manner assumes that all minorities are simply interchangeable with one another. Any black student in a law school class will bring "black" perspective to the discussion and the learning experience---it doesn't matter if he attended an impoverished inner-city high school or a chic prep school---black skin creates diversity. What utter nonsense this truly is.

Don't expect the usual "race matters" crowd of university administrators and professional civil rights activists to abandon this fight. "Diversity" is the holy grail for these groups: if "diversity" cannot justify preferential treatment in college admissions, it will likely be found equally insufficient in the professional world. Many employees will want to know why race is a factor in hiring and promoting at their company, yet unconstitutional in academia.

While the Supreme Court may wish to avoid further controversy following its historic role in this election, the nation desperately needs a resolution of conflicting lower court decisions on racial preferences. To fulfill the promise of the Equal Protection clause and instill unity in a nation that includes an ever-growing number of people of more than one race and ethnicity, the Supreme Court must finally declare that the pursuit of "diversity" must not entail preferring one race or ethnicity over another.

Marc Levin, a practicing attorney, is President of the American Freedom Center, a conservative, Austin,TX-based public policy institute. He can be reached at mrmarclv@aol.com.

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