After Grutter and Gratz

[Bonnie]

The naming of White House counsel Harriet Miers to replace retiring Supreme Court Justice Sandra Day O'Connor has provoked serious concern among some conservatives. They worry that Miers may take positions all too similar to O'Connor's on issues like affirmative action. O'Connor was often the swing vote on controversial social issues from abortion to school prayer, and she actually wrote the majority opinion in one of the most important decisions on affirmative action in the last two decades. Writing for a 5-4 majority in a University of Michigan law school case, Grutter v. Bollinger, O'Connor upheld the use of race to achieve diversity, but she then joined the late Chief Justice William Rehnquist and Justices Scalia, Thomas, Kennedy and Breyer to reject the university's affirmative action program for undergraduates in Gratz v. Bollinger. Most conservatives hoped that with O'Connor gone, the Supreme Court might revisit affirmative action with a decision that once and for all rejects racial preferences as permissible public policy. But it may be that even without further action by the court, the practice of granting preference to minority students is beginning to lose favor on college campuses.

A recent study by two sociologists at the University of California at Davis, which looked at public and private undergraduate admissions at some 1,300 institutions from 1986-2003, concluded that the number of schools that considered race as a factor in admission declined sharply after 1995. After holding steady for nearly a decade, the proportion of public four-year institutions that acknowledged using race as a plus-factor in admission declined from 60 percent to 35 percent, while the percentage of private schools using preferences fell from 57 to 45. The study's authors conclude that litigation and the threat of litigation were factors in discouraging schools from taking race into account in admitting students. Many conservatives worried after the University of Michigan decisions that schools would feel justified in continuing to use racial preferences, but the opposite may be happening.

For at least two decades following the 1978 Bakke decision that first introduced "diversity" as a "compelling state interest" permitting race-based preferences in admissions, most elite colleges and universities boldly applied racial double-standards in determining whom to admit. In analyzing admissions data from nearly 70 public undergraduate and graduate programs, my Center for Equal Opportunity (CEO) found that the schools we studied routinely admitted black and Hispanic students with substantially lower grades and test scores. In many instances, being black or Hispanic did not appear simply to be one among many factors weighed by the schools, but the decisive factor. In a separate study, George Mason University professor David J. Armor found that at the University of Virginia in 2003, a black student was 106 times more likely to be admitted than a white student with the same grades and test scores, while at William and Mary Law School, the odds ratio favoring black students was 267 to 1. But in the wake of Grutter and Gratz, schools are struggling with how much weight they can give race or ethnicity without running afoul of the law.

The rollback of affirmative action won't necessarily mean fewer opportunities for blacks and Hispanics, however. More blacks and Hispanics are going to college than at any time in our nation's history. Data from the Census Bureau and the National Center for Education Statistics show that blacks and Hispanics constitute nearly one quarter of the undergraduate population at four-year institutions and 36 percent of community college enrollment. Over the decade 1993-2003, black enrollment in higher education grew from 10 percent to 13 percent of combined undergraduate and graduate students. Hispanics posted even more impressive gains over the same period, from 4 percent of all college students to 10 percent. The decline in race-based admissions suggests more of these students may have ended up at colleges and universities that better matched their preparation levels, schools where skin color was no longer the ticket for admission, and where they could compete on an equal footing with their white and Asian peers. That is certainly the case in California, which banned racial preferences in college admissions at state schools in 1996. Even without the noblesse oblige of a Supreme Court justice to place a thumb on the scale on their behalf, blacks and Hispanics are demonstrating they are capable of succeeding the old-fashioned way -- through hard work and their own efforts.

http://www.townhall.com/opinion/columns/lindachavez/2005/10/05/159411.html


Imagine that!!

 

[William Joyce]

If "diversity" is a compelling state interest, why not racial preservation?

 

[Annie]

Here's more on the same topic, lots of links:

http://www.proteinwisdom.com/index.php/weblog/entry/19159/

Sunday, October 09, 2005
Miers and Affirmative Action

From the Dallas Morning News:

She may have no judicial record, but Supreme Court justice nominee Harriet Miers took firm stances on issues ranging from taxation to democratic reforms abroad as a one-term member of the Dallas City Council, a Dallas Morning News study of city records indicates.

For example, in 1991, Miers voted in favor of a council resolution reaffirming economic sanctions Dallas had imposed against South Africa, then under a white minority-rule apartheid government. The council adopted the resolution by a 6-2 vote with three absences.

At the time, President George H.W. Bush was considering repealing federal economic sanctions against the country.

A 1989 city ordinance prohibited Dallas government from buying goods that originated in South Africa or conducting business with firms that sold goods or services there for use by the police, military or prison system.

“As she goes through this nomination process, something like that should cheer the liberals and lead to gnashing of teeth among the very conservative social conservative,” said Cal Jillson, a political science professor at Southern Methodist University, Miers’ alma mater. “Hers was the appropriate moderate Republican position of the day, but beating up on South Africa wasn’t a way to win friends with conservatives.”

It was one of several council votes that will be scrutinized as her court nomination moves forward. She served between June 1989 and November 1991.

Miers was one of 10 Dallas council members to unanimously approve a 1989 agenda item that revised minimum height, weight and vision requirements for Dallas firefighters to facilitate “promotion of certain ranks in the Fire Department,” particularly women.

The agenda item’s title: “Implementation of Fire Department Affirmative Action Plan."

Meanwhile, USA Today’s Joan Biskupic corroborates John Yoo’s assertion (later repeated by David Frum) that Harriet Miers was an influence on the Administration’s decision to argue FOR Affirmative Action in Grutter . From the the Oct 7 issue of Washington Week (no web link):

BISKUPIC: There’s not a paper trail at all on her, and actually the truth is -– there are a couple decisions that she was –- she played a larger role in. For example, the affirmative action case from Michigan two years ago, she gave a little bit more advice than usual. But one of the reasons that I think Alberto Gonzales had some things going against him is because he actually had his fingerprints on some of these memos. Harriet Miers didn’t.

In the instance of the Dallas firefighters, we can perhaps give Miers the benefit of the doubt; after all, she had yet to undergo her Party conversation, and in 1989, it may still have seemed like a good idea to decide on the basis of what kind of reproductive organs one is packing in one’s flame retardant trousers how effective one would be carrying heavy equipment and putting out fires (and really, who needs perfect eye sight to fight a three-alarm blaze? You just kinda look for the big yellow hot spot and spray water on it, right?)

But in Grutter, Bush let conservatives down, and he showed a willingness to make certain calculated (wrongly, in my opinion) political calculations at the expense of ideological coherence. And if it turns out that Miers—his trusted friend and confidant was, along with Al Gonzales, behind pushing that political and ideological surrender—than I simply cannot trust her to act any differently on the court.

Because presumably the President’s personal lawyer wouldn’t advise the President to side with a policy practice she felt was (as many conservatives and classical liberals do) on its face unconstitutional. And race-based affirmative action is precisely such a political practice; that the Court continues to deny what is to many lay people so blindingly obvious is one of the reasons many Americans—and in particular, many conservatives, libertarians, and classical liberals—are so committed to changing the direction of the Court.

As Patterico reminds us:

[...] those who say we should “trust Bush” on the Miers nomination seem to forget his position on certain issues [...].

You might be able to trust Bush to pick a pal that he thinks will carry out his political agenda. But even if he’s right, that’s not necessarily the same thing as picking someone who will be your idea of a judicial conservative.

This gets precisely to the point, and it echoes an observation that I made recently, namely, that “the Miers nomination[...] appears to be an instance of George Bush finding an evangelical who will be tough on porn and abortion (which social cons will find appealing), but [who] will prove to be “moderate”—or at least deferential—on affirmative action and other proportional-based moves toward social-engineering [the Dallas firefighter example, which suggests, too, she would likely support Title IX].” That is, she appears to be a person whose loyalty to Bush extends to his political philosophy, which, on the domestic front, at least, is far less conservative than Howard Dean or the MoveOn folks would have you believe.

And what turns a judicial figure into an activist is precisely the kind of political calculus at work in the Administration’s thinking on these issues. Such a calculus plagued the tenure of Sandra Day O’Connor, who would dress her political beliefs in the garb of judicial opinion, and so who pleased liberal activists (as a “conservative” Justice) insofar as she was willing, structurally, to play their game.

But such a worldview should be anathema to a Supreme Court Justice. It’s the reason I strongly opposed an Alberto Gonzales nomination (he gave every sign that he would base important social decisions on political expediency, and he was on record as supporting affirmative action); and it’s the reason that I am now leaning forward making my opposition to Miers official.

The kind of race / gender-based social engineering that Miers seems to think will help society, if legally justified and politically implemented, is, to me, as big a divergence from our founding principles as there is. And beyond that, it has proven a practical failure insomuch as it has granted legitimacy to the notion of identity politics and given power to racial charlatans and feminist social engineers in whose interests it is to keep the country divided into warring factions.

It is also worth noting, so long as we’re pointing out that Miers’ support for the President seems to run toward the political, that had the White House filed a brief in Kelo, it would have filed on behalf of the municipal government.

Sandra Day O’Connor, you’ll remember, wrote a stinging dissent in that case. Which means that, if Miers truly does mirror the political philosophy of the President, the new Court might actually be taking a step backwards.

And if that doesn’t give you pause, nothing will.


****
Glenn points to further divide over Miers: Bay vs Bay; and Ed Morrisey in the WaPo.

****
update: At the invitation of Don Surber and Beth Cleaver, Commissar reads and responds to Beldar’s recent defense of Miers.

Beldar answers in the comments; more here.

See also, Mark Steyn.

 

[William Joyce]

The kind of race / gender-based social engineering that Miers seems to think will help society, if legally justified and politically implemented, is, to me, as big a divergence from our founding principles as there is. And beyond that, it has proven a practical failure insomuch as it has granted legitimacy to the notion of identity politics and given power to racial charlatans and feminist social engineers in whose interests it is to keep the country divided into warring factions.

Of course I agree that the racial engineering Miers appears to champion is a terrifically bad idea (and probably why Reid and the the rest of the liberals will support her). But it hasn't proven a practical failure by granting "legitimacy to the notion of identity politics..."

What lent legitimacy to 'identity politics' is nature itself, Goldstein. You and your tribe pretty much started the whole thing, if I might mention that. Anyway. You seem to think it's terrible when blacks or whites seek it, but never when Jews seek it. Why, just look at the rest of your links!

Tip for today: All politics are identity politics.

 

[Annie]

The kind of race / gender-based social engineering that Miers seems to think will help society, if legally justified and politically implemented, is, to me, as big a divergence from our founding principles as there is. And beyond that, it has proven a practical failure insomuch as it has granted legitimacy to the notion of identity politics and given power to racial charlatans and feminist social engineers in whose interests it is to keep the country divided into warring factions.

Of course I agree that the racial engineering Miers appears to champion is a terrifically bad idea (and probably why Reid and the the rest of the liberals will support her). But it hasn't proven a practical failure by granting "legitimacy to the notion of identity politics..."

What lent legitimacy to 'identity politics' is nature itself, Goldstein. You and your tribe pretty much started the whole thing, if I might mention that. Anyway. You seem to think it's terrible when blacks or whites seek it, but never when Jews seek it. Why, just look at the rest of your links!

Tip for today: All politics are identity politics.

When did Jews get into affirmative action-as beneficiaries I mean, not proponents of...