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Split Decision, Clear Result (the Michigan SC cases)
United Press International ^ | 23 June 2003 | John Armor

Posted on 06/23/2003 3:57:03 PM PDT by Congressman Billybob

This morning the US Supreme Court issued two decisions concerning affirmative action in the admissions policies of the University of Michigan. By a 5-4 decision, it affirmed the race-based policy of the University's law school. By a 6-3 decision, it struck down a similar policy for undergraduate admissions.

In the law school case (Grutter v. Bollinger) the Court issued six different opinions among the nine Justices. In the undergraduate case (Gratz v. Bollinger), it issued perhaps its all-time record, seven opinions in one case. Despite that large number of opinions, some of which are remarkably hostile toward one another, the bottom line conclusion of these two cases is clear – affirmative action is dead in American universities in no more than 25 years.

We start with Gratz, the undergraduate decision. The Admissions Office there awarded 20 points automatically to any applicant who was a member of a "disadvantaged minority," which meant African-Americans, Hispanics, or Native Americans. Admission to the university generally required 100 points out of a possible 150. By contrast, the rare student who achieved a perfect score on the Scholastic Aptitude Test received only 5 points for that. One racial group, Asian Americans, received no points, because historically students from that group outperform Caucasian students in academics and in qualifications for admission.

The effect of the 20-point bonus was to make "the factor of race .... decisive" for almost every minimally qualified student from those specified groups. It also meant that applicants not from those racial groups, but far better qualified academically, were refused admission.

Led by Chief Justice Rehnquist, six Justices had no difficulty concluding that this amounted to a quota system, which the Court had condemned in the Bakke decision a quarter century ago, and agreed that the undergraduate admission system – and anything like it in any other public college or university – was unconstitutional. (There were separate Dissents filed by Justices Stevens, Souter and Ginsburg.)

On the face of it, the law school case seems to be the opposite of the undergraduate one. In the Grutter case, the Admissions Office looked at every one of the 3,500 or so applicants for a freshman class of about 350 students. They looked at grade point averages, at scores on the Law School Aptitude Test, at extracurricular activities, and at "life experience." Included in the latter were the racial experiences in the students' lives, including difficulties faced and overcome. Justice O'Connor wrote the Opinion of the Court approving this system, joined by Justices Stevens, Souter, Ginsburg and Breyer.

In both cases, the University of Michigan asserted that it had a legitimate educational purpose of "diversity" in the student body. It said that students learn not only from their professors but from one another, and diversity is essential to that purpose. In both cases, the Supreme Court accepted that as a legitimate purpose – but in the undergraduate case only, the Court struck down the method chosen to accomplish that "compelling interest."

In the law school, the University said it sought a "critical mass" of minority students, not just the small numbers of minority students who qualified for admission without any special consideration. The University never defined how many students made up a "critical mass," because that would appear to be a quota, which was clearly illegal.

Chief Justice Rehnquist, in a particularly cutting dissent, used the University's own admissions figures to demonstrate that the "critical mass" for African American students was more than twice the critical mass for Hispanics and four times the critical mass for Native Americans. Both he and Justice Thomas, the Court's only black Justice, referred to the Law School admissions program as "a sham." Justices Kennedy and Scalia also filed dissents.

Both of these cases were decided under the Fourteenth Amendment, which says that no state shall "deny to any person ... the equal protection of the laws." Both cases started with the presumption that denying admission to one student as opposed to another, solely on account of the different races of the two students, denies equal protection to the student excluded. And all of the plaintiffs in both of these cases were denied admission though they had credentials which would have gotten them in for certain, had they been members of a disadvantaged minority. This factual finding was not questioned by any of the Justices in either of the cases.

What is going on here? Has the Supreme Court turned schizophrenic, approving racial discrimination in one case but rejecting it in the other?

No. There is one critical difference between the two cases. For undergraduates, the advantage for certain students was absolute and solely race-based. Every member of the target race got the advantage, without any consideration of whether it was appropriate. However, for law school applicants the advantage was individually considered. For example, a child of Cliff and Clair Huxtable (the Cosby family on TV), would get no advantage – that child of a doctor and a lawyer, attending good schools in good neighborhoods, would be expected to perform at the same level as any Caucasian or Asian American student.

Some readers might ask at this point whether this means less racial discrimination, but not an end to discrimination. Some might agree with the dissent in the law school case, that this is still a violation of the Fourteenth Amendment. See for yourselves. The opinions are relatively short and written in plain English. They can be found at either of these websites: www.supremecourtus.gov and www.supct.law.cornell.edu/supct/ The alternative site at Cornell is given because the Supreme Court's official site was overrun with hits today.

There is a critical point in the law school case not mentioned in any of the press reports this writer has seen and heard. In line with prior Court decisions, Justice O'Connor's Opinion states that it should remain in effect only for "twenty-five years." Even by its own terms, this decision is deliberately temporary. That leads to the ultimate conclusion that affirmative action, even in the limited form accepted in one case today, will be abolished as unconstitutional. - 30 - About the Author: John Armor practices civil rights law in the Supreme Court, and is filing his 17th brief there this month.

- 30 -


TOPICS: Breaking News; Constitution/Conservatism; Culture/Society; Editorial; Free Republic; Government; News/Current Events
KEYWORDS: affirmativeaction; michigancases; ruling; supremecourt
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I just heard from my Editor at UPI that this is on the wire. Doesn't show on GoogleNews, yet, so I can't see their revisions if any (though they are slight, if any).

Enjoy. Comment as you will.

John Armor / Congressman Billybob

1 posted on 06/23/2003 3:57:03 PM PDT by Congressman Billybob
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To: Congressman Billybob
"By contrast, the rare student who achieved a perfect score on the Scholastic Aptitude Test received only 5 points for that."

These colleges ought to be shut down. Forbid they find out that you're a Jesus freak - they'll dock you big points for that if not totally disqualify you.
2 posted on 06/23/2003 4:00:29 PM PDT by ApesForEvolution ("The only way evil triumphs is if good men do nothing" E. Burke)
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To: Congressman Billybob
Good article- thanx for posting...

Every member of the target race got the advantage, without any consideration of whether it was appropriate. However, for law school applicants the advantage was individually considered. For example, a child of Cliff and Clair Huxtable (the Cosby family on TV), would get no advantage – that child of a doctor and a lawyer, attending good schools in good neighborhoods, would be expected to perform at the same level as any Caucasian or Asian American student.

How will they discover this information? INvestigations? Interviews? Essays?

3 posted on 06/23/2003 4:04:27 PM PDT by Principled
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To: Congressman Billybob
'Critical Mass' for racial preferences sounds like a cop out to me, could be any number some University wants to pick out of a hat.
4 posted on 06/23/2003 4:13:09 PM PDT by ewing
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To: Congressman Billybob
Thanks for posting this informative article.

These people are just plain sick. They have no idea what common sense tells you.

I can only hope that aa is dead before 25 years.
5 posted on 06/23/2003 4:13:34 PM PDT by freekitty
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To: Congressman Billybob
University of Michigan asserted that it had a legitimate educational purpose of "diversity" in the student body.

Diversity is in the unique soul and spirit of each person
Why is this always based on race?
If "diversity" is necessary to obtaining educational excellence than all black college students are significantly less capable than their "diversified" peers or all Christian schools, all girls schools etc.

People are "diverse", not race

6 posted on 06/23/2003 4:16:07 PM PDT by apackof2 (Listen much, talk little, learn greatly)
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To: Congressman Billybob
As always, we appreciate the insightful comments from Congressman Billybob.

Folks over at CNN are treating this like complete victory for affirmative action. Perhaps they haven't seen your analysis yet.

7 posted on 06/23/2003 4:16:37 PM PDT by mcenedo
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To: mcenedo
Thanx for your comment.

Yes, most commentators have gotten it wrong. Jonathan Turley was closest to accurate on Fox with Brit Hume. Brit was the first newsperson to mention that this "win" for affirmative action in the law school had a sunset provision to drop out at 25 years.

John / Billybob

8 posted on 06/23/2003 4:19:58 PM PDT by Congressman Billybob ("Saddam has left the building. Heck, the building has left the building.")
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To: Congressman Billybob
Grutter

Gratz

9 posted on 06/23/2003 4:21:37 PM PDT by facedown (Armed in the Heartland)
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To: Miss Marple; Howlin; Mo1; TLBSHOW; justshe; Neets

10 posted on 06/23/2003 4:25:11 PM PDT by deport (TLBSHOW BUSHBOT de EXTRAORDINAIE TRANSCENDS...MAY 2004)
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To: Congressman Billybob
If I understand you correctly, the Supreme Court just made Marxism a part of the 14th Amendment to the US Constitution. What entities an otherwise less qualified black person to enter a universe is not solely the fact that he is black, but also the fact that he needs admission more than a more qualified person (including a more qualified black person who comes from a more well to do family). The applicant with ability is essentially sacrified so that his spot can be taken by a more needy, less well qualified applicant from a favored racial or ethnic group. "From each according to his ability, to each according to his need" -- in addition to the tinge of government-enforced racism that permeates all affirmative action cases.

Excuse me for stopping here, but I need to run to the restroom...

11 posted on 06/23/2003 4:33:16 PM PDT by kesg
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To: Wild Irish Rogue
FYI.
12 posted on 06/23/2003 4:33:16 PM PDT by Howlin
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To: Principled
How will they discover this information? INvestigations? Interviews? Essays?

Well, the school that they went to will be known to the admissions committee, as well as the neighborhood they live in. So they would have a pretty good idea who was from the worst ghettos and who was from Beverly Hills.

Financial aid would have the tax and financial information of the parents. But most, if not all schools try (or pretend) to keep that info out of the admissions process. However, just looking at zip codes alone gives one a good idea about someone's background.

13 posted on 06/23/2003 4:34:14 PM PDT by LenS
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To: ApesForEvolution
There is a critical point in the law school case not mentioned in any of the press reports this writer has seen and heard. In line with prior Court decisions, Justice O'Connor's Opinion states that it should remain in effect only for "twenty-five years."

If this isn't a blatant admission that they know that their decision is unconstitutional, I don't know what is.

14 posted on 06/23/2003 4:34:39 PM PDT by kesg
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To: Congressman Billybob
Thank you!! Great article. I feel much better about the whole thing.
15 posted on 06/23/2003 4:36:43 PM PDT by SoCar (Huckabee's "Tax Me More Fund" needs to spread!)
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To: kesg
25 year moratorium on having to apply the Constitution to anything BTTT
16 posted on 06/23/2003 4:38:19 PM PDT by ApesForEvolution ("The only way evil triumphs is if good men do nothing" E. Burke)
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To: kesg
I'm taking a 25 year break from some of the crap that was added to the Constitution in the 20th Century...
17 posted on 06/23/2003 4:39:17 PM PDT by ApesForEvolution ("The only way evil triumphs is if good men do nothing" E. Burke)
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To: Principled
The application process generally includes certain financial information (they want to know you can actually go to the school after they accept you), plus address information which can tell you a lot, finally you've got transcripts which tell you if the kid went to a public or private school.
18 posted on 06/23/2003 4:40:13 PM PDT by discostu (you've got to bleed for the dancer)
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To: Congressman Billybob
bttt
19 posted on 06/23/2003 4:44:36 PM PDT by firewalk
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To: deport; Congressman Billybob; Howlin; Miss Marple
Somehow, I do not think the crybabies in the conservative movement will bother to listen to facts.
20 posted on 06/23/2003 4:45:36 PM PDT by hchutch ("If you donít win, you donít get to put your principles into practice." David Horowitz)
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To: hchutch
They may not but I"m posting this to other threads..... lol
21 posted on 06/23/2003 4:47:45 PM PDT by deport (TLBSHOW BUSHBOT de EXTRAORDINAIE TRANSCENDS...MAY 2004)
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To: deport
Me too!
22 posted on 06/23/2003 5:02:25 PM PDT by justshe (Educate....not Denigrate !)
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To: 1Mike; 3catsanadog; ~Kim4VRWC's~; A CA Guy; A Citizen Reporter; abner; Aeronaut; AFPhys; agrace; ...
Bumparooski!
23 posted on 06/23/2003 5:07:21 PM PDT by Howlin
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To: Howlin
Every time you type "Bumparooski".....I SWEAR you are either Laverne..or Shirley!

Excellent analysis. Thanks for the ping!
24 posted on 06/23/2003 5:10:13 PM PDT by justshe (Educate....not Denigrate !)
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To: Congressman Billybob
There is a critical point in the law school case not mentioned in any of the press reports this writer has seen and heard. In line with prior Court decisions, Justice O'Connor's Opinion states that it should remain in effect only for "twenty-five years." Even by its own terms, this decision is deliberately temporary. That leads to the ultimate conclusion that affirmative action, even in the limited form accepted in one case today, will be abolished as unconstitutional.

I don't think Justice O'Connor's opinion says that race preferences will necessarily be unconstitutional 25 years from now. She was just voicing an expectation.

O'Connor wrote:

The Court expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today. Pp. 21—31

IOW, if we are still not diverse enough in 25 years, the 14th Amendment will just have to wait a little longer.

25 posted on 06/23/2003 5:10:30 PM PDT by Ken H
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To: deport

"students learn not only from their professors but from one another, and diversity is essential to that purpose"

Exactly what is a white person suposed to learn from a black person?

What if that black person doesn't speak eubonics, eat collard greens, play basketball or steal hubcaps?

Can white law school students learn to break dance only from blacks who are in law school? Aren't there other black persons in Detroit who can teach them break dancing?

26 posted on 06/23/2003 5:12:18 PM PDT by bayourod
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To: Howlin
I'm here reading
thanks for the ping (-:
27 posted on 06/23/2003 5:12:25 PM PDT by firewalk
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To: Congressman Billybob
the bottom line conclusion of these two cases is clear – affirmative action is dead in American universities in no more than 25 years.

I think you're stretching it quite a bit here. The Court's expectation of what will or will not be necessary in 25 years doesn't exactly amount to a time limit.

28 posted on 06/23/2003 5:15:30 PM PDT by Sandy
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To: hchutch
Please don't make light of this. Just now cops burst into my house without a warrant, cited this UM ruling, took away my guns, and performed an abortion on my dog. They said that when they return they will ban me from the internet and church...
29 posted on 06/23/2003 5:17:40 PM PDT by Diddle E. Squat
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To: Congressman Billybob
If it will be unconstitutional in twenty-five years, why isn't it unconstitutional now?
30 posted on 06/23/2003 5:18:20 PM PDT by Unknown Freeper
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To: Congressman Billybob
the bottom line conclusion of these two cases is clear – affirmative action is dead in American universities in no more than 25 years.

Does that mean that the SC considers all such cases closed until then?

31 posted on 06/23/2003 5:21:45 PM PDT by Fraulein
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To: Congressman Billybob
...the rare student who achieved a perfect score on the Scholastic Aptitude Test received only 5 points for that.

I thought is was 12 points for a perfect SAT.....

32 posted on 06/23/2003 5:23:10 PM PDT by TankerKC (Take the time it takes, so it takes less time.)
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To: Diddle E. Squat
You obviously are starting to see the humor in the ridiculous hysteria. Congrats!
33 posted on 06/23/2003 5:25:53 PM PDT by justshe (Educate....not Denigrate !)
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To: hchutch
The bottom line for all these complainers is that they apparently expect President Bush to DO something. What they expect him to do, I haven't figured out yet.

Ignore the Supreme Court? Get on TV and rant? Ask for the justices to be impeached?

This is just another excuse for the usual group to get on a rant about how much they dislike Presidient Bush.

34 posted on 06/23/2003 5:28:29 PM PDT by Miss Marple
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To: Miss Marple
"This is just another excuse for the usual group to get on a rant about how much they dislike Presidient Bush."

And the excuses are getting pretty transparent to many....finally.

Logic and THINKING are not required by this usual group. They just REACT for the sake of REACTING! Sad.
35 posted on 06/23/2003 5:35:07 PM PDT by justshe (Educate....not Denigrate !)
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To: bayourod
Exactly what is a white person suposed to learn from a black person?

That stereotypes are for the ignorant.

36 posted on 06/23/2003 5:36:54 PM PDT by sinkspur
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To: Congressman Billybob
Good article, John; I'll admit that I see your point, but I'm still not there yet. This looks completely schizophrenic entirely. Not only that, it looks like it'll be back before the justices in a few years in another form...
37 posted on 06/23/2003 5:37:08 PM PDT by mhking
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To: Congressman Billybob
I can't wait to see how the Usual Suspects rule on "Campaign Finance".

Do you think they'll put a 25 year time limit on letting that Law ride before upholding the clear intent and purpose of the 1st Amendment? This ruling certainly suggests such a precedent!

38 posted on 06/23/2003 5:37:19 PM PDT by Gritty
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To: justshe
They even react before they KNOW what the decision says!
39 posted on 06/23/2003 5:37:45 PM PDT by Howlin
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To: ApesForEvolution
Can I take a 25 year break from paying Income Taxes?

Why Not..

40 posted on 06/23/2003 5:41:26 PM PDT by Licensed-To-Carry (Faster Horses, Older Whiskey, Younger Women, More Money)
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To: Howlin
Maybe they've been reading some of the ignorant analysis of the decisions. Look at this title:

Supreme Court gives strong backing to affirmative action:

http://www.miami.com/mld/miamiherald/6153958.htm
41 posted on 06/23/2003 5:46:53 PM PDT by TankerKC (Take the time it takes, so it takes less time.)
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To: Howlin
Thanks for the ping.
42 posted on 06/23/2003 5:47:08 PM PDT by MJY1288 (Liberalism is the enemy of Freedom)
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To: Congressman Billybob
Not too shabby!
43 posted on 06/23/2003 5:49:19 PM PDT by dennisw (G-d is at war with Amalek for all generations)
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To: TankerKC
Oh I heard some of those myself.

There were people on here commenting on the decision that don't have TV so they couldn't possibly have seen or heard about it.
44 posted on 06/23/2003 5:49:46 PM PDT by Howlin
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To: Ken H
if we are still not diverse enough in 25 years, the 14th Amendment will just have to wait a little longer.

Exactly. And even if we are diverse enough in 25 years, there's nothing in this opinion that prevents another compelling government interest from being tarted up as justification for discrimination.

45 posted on 06/23/2003 5:49:53 PM PDT by Sandy
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To: Congressman Billybob


Simply Crap.
46 posted on 06/23/2003 5:51:57 PM PDT by wardaddy (I was born my Papa's son....when I hit the ground I was on the run.....)
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To: Congressman Billybob
It's no longer about redress.

It's about diversity.
47 posted on 06/23/2003 5:53:07 PM PDT by wardaddy (I was born my Papa's son....when I hit the ground I was on the run.....)
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To: Congressman Billybob
Thanks for the excellent analysis, I didn't consider this a win for the AA crowd either.

If the quota system is taken out of the undergraduate enrollment, it sure isn't going to be there for the post graduate enrollment

48 posted on 06/23/2003 5:53:27 PM PDT by MJY1288 (Liberalism is the enemy of Freedom)
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To: Congressman Billybob
University of Texas starts work on new admissions policies

By Jim Vertuno

ASSOCIATED PRESS
Monday, June 23, 2003

AUSTIN — The University of Texas will draft new affirmative action admissions policies that include race as a factor as allowed by Monday's ruling by the U.S. Supreme Court, school President Larry Faulkner said Monday.

Statesman.com

Students at the University of Michigan celebrated Monday after the Supreme Court handed down a decision narrowly upholding affirmative action.

49 posted on 06/23/2003 5:54:45 PM PDT by fight_truth_decay
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To: Congressman Billybob
Good summary. Turley also made the point that since this ruling failed to draw bright lines, it will lead to more litigation, requiring another Supreme Court ruling. And if there is even a one-person change in the court’s composition (with one more conservative justice) we could see the end of affirmative action much sooner.
50 posted on 06/23/2003 6:04:55 PM PDT by moneyrunner (I have not flattered its rank breath, nor bowed to its idolatries a patient knee.)
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