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Less than rosey views of the
Supreme Court Michigan rulings

FromL: Gregory Wonderwheel
Wednesday, June 24, 2003

What can I say, either the attorneys you listened to got it wrong or you mis-heard them. Who were the attorneys?

The opinions can be downloaded in .pdf file format at


The majority opinion by O'Connor in GRUTTER v.BOLLINGER, et al., uses the word "proportion" only once and the word "proportional" only once. Both times it is used negatively to mean "quotas."

First occurrence:
"We are satisfied that the Law School 's admissions program, like the Harvard plan described by Justice Powell, does not operate as a quota. Properly understood, a `quota' is a program in which a certain fixed number or proportion of opportunities are `reserved exclusively for certain minority groups.'" (Majority opn. at p. 22, Slip opn. at p. 27.)

Second use:
"The requirement that all race-conscious admissions programs have a termination point `assure[s] all citizens that the deviation from the norm of equal treatment of all racial and ethnic groups is a temporary matter, a measure taken in the service of the goal of equality itself."Richmond v. J.A. Croson Co.,488 U.S.,at 510 (plurality opinion);see also Nathanson & Bartnik, The Constitutionality of Preferential Treatment for Minority Applicants to Professional Schools,58 Chicago Bar Rec.282, 293 (May -June 1977) (`It would be a sad day indeed, were America to become a quota-ridden society, with each identifiable minority assigned proportional representation in every desirable walk of life. But that is not the rationale for programs of preferential treatment; the acid test of their justification will be their efficacy in eliminating the need for any racial or ethnic preferences at al')." (Maj. opn at. p. 31, Slip opn. at 36.)

All nine Justices agreed that requiring proportions for "racial balancing" is unconstitutional. The 5 Justice majority found the UM Law School program to be an individualized system and NOT a proportional system, while the 4 dissenting Justices found that the application of the "critical mass" theory was proportional balancing in disguise. Scalia wrote, "The admissions statistics show it to be a sham to cover a scheme of racially proportionate admissions." (Scalia dissent p. 1, Slip opn. at p. 42.)

These two cases were a split decision. To be objective, I have to ask, Is the glass half full or half empty? On the one hand, the court upheld by the slimmest margin the pursuit of affirmative action and the goal of diversity, but with the other hand the court narrowed the definition of acceptable affirmative action programs and solidified the definition of unconstitutional "quotas" as any kind of "racial balancing" that relies on percentages or mechanical numbering.

"We find that the Law School 's admissions program bears the hallmarks of a narrowly tailored plan. As Justice Powell made clear in Bakke ,truly individualized consideration demands that race be used in a flexible, nonmechanical way. It follows from this mandate that universities cannot establish quotas for members of certain racial groups or put members of those groups on separate admissions tracks. See id.,at 315 -316. Nor can universities insulate applicants who belong to certain racial or ethnic groups from the competition for admission. Ibid .Universities can, however, consider race or ethnicity more flexibly as a "plus " factor in the context of individualized consideration of each and every applicant. Ibid ." (Maj. opn. at p. 22, Slip opn. at p. 27.)

"Here, the Law School engages in a highly individualized, holistic review of each applicant's file, giving serious consideration to all the ways an applicant might contribute to a diverse educational environment. The Law School affords this individualized consideration to applicants of all races. There is no policy, either de jure or de facto, of automatic acceptance or rejection based on any single `soft' variable.. Unlike the program at issue in Gratz v. Bollinger , ante, the Law School awards no mechanical, predetermined diversity `bonuses' based on race or ethnicity." (Maj. opn. at p. 25, Slip opn. at p. 30.)

"The Law School's interest is not simply `to assure within its student body some specified percentage of a particular group merely because of its race or ethnic origin.' Bakke, 438 U.S., at 307 (opinion of Powell, J.). That would amount to outright racial balancing, which is patently unconstitutional. Ibid.; Freeman v. Pitts,503 U.S.467, 494 (1992) (`Racial balance is not to be achieved for its own sake'); Richmond v. J.A.Croson Co., 488 U.S.,at 507. Rather, the Law School's concept of critical mass is defined by reference to the educational benefits that diversity is designed to produce." (Maj. opn. at p. 17, Slip opn. at p. 22.)

With the court this closely divided, the possible retirement of O'Connor and a replacement by Bush looms like an ominously dark cloud on the horizon.

Gregory Wonderwheel --- In NewPacifica@yahoogroups.com, "Rafael Renteria" wrote:
> Having listened attentively last night to the Pacifica national
> broadcast on the court's ruling - from what I heard all the attorneys
> who were guests on that program disagree with your interpretation.
> Rafael
> --- In NewPacifica@yahoogroups.com, "A. Gregory Wonderwheel" wrote:
> > The Supreme Court DID NOT uphold "the principle in the Michigan law
> > school program of proportionate representation."
> >
> > In fact the court said just the opposite. O'Connor's opinion says
> > that any kind of mechanistic numbering (points or percentages) given
> > to racial groups as "groups" would be just as impermissible
> > as "quotas." The court specifically found that the "critical mass"
> > theory of racial consideration did not include such ideas as
> > proportionate racial representation and if it had then it would have
> > been impermissible.
> >
> > The critical mass justification was permitted precisely because (1)
> > it used the racial factor as only one among many factors of
> > diversity, (2) it applied those factors on an individual case by case
> > basis when reviewing each admissions applicant, (3) did NOT use
> > proportionate representation or other target numbers but instead
> > resulted in variable percentages of minorities without reference to
> > such targets as proportions, and (4)did not use preferential factors
> > such as points given out on a group basis making race alone into a
> > determining factor.
> >
> >; Gregory Wonderwheel
> >
> >
> > --- In NewPacifica@yahoogroups.com, "Rafael Renteria" ; wrote:
> > > It seems to me that the key factor in this decision is that the
> > court
> > > upheld the premise of a compelling govt interest in diviersity in
> > > education (it had held that there is a serious govt interest in
> > > diversity in broadcasting in Metro v FCC) and that the court upheld
> > > the principle in the Michigan law school program of proportionate
> > > representation - the same principle Plan A is based on - or,as
> > people
> > > for the american way put it - the "goal of having a critical mass of
> > > underrepresented students in each class."
> > >
> > > This, of course is at first glance.
> > >
> > > Rafael Renteria
> > >


From: Stephen M Brown [WBAI area]
Tuesday, June 24, 2003

The Michigan Supreme Court decision will have terrible effects on American society. But it may have one positive result. For the decision demonstrates that passage of Draft A of the bylaws would embroil Pacifica in hugely expensive lawsuits and governmental challenges, from which it would most likely fail to emerge alive.

It is clear from the decision that the court means to make affirmative action absolutely illegal for purposes of righting wrongs that may have deprived minorities of benefits, as a "class," in the past, if to do so requires the use of compensatory affirmative action that will benefit members of that minority, as "individuals," in the present.

The decision also rejects affirmative action if it is used to establish diversity simply because diversity is a Good Thing, in and of itself.

On striking down the Michigan point system, the court said that the system was unconstitutional because it gave too great a prominence to race as one of the factors to be weighed in admissions policy. Sandra Day O'Connor wrote that the Constitution did not absolutely prohibit weighing race as a factor -- as long as it was not too prominent a factor. (How many court disputes will this spark, in the future, over what is or is not "too prominent"?)

O'Connor's standard may seem "reasonable" at first glance -- except that the majority decision makes clear that this not-too-prominent consideration of race is to be allowed only when (as the law school argued, and as the court accepted) there is some compelling interest or benefit to an organization or its operations to be derived from having a (moderately) diverse student body -- or workplace? or board of directors? or political governing body?

The implication is that the only thing allowed to be considered is the benefit or compelling interest of the school or employer in successfully and/or profitably conducting its own activities -- NOT the benefit or compelling interest to the individual, or to his particular racial demographic, or to society as a whole by fairly and justly righting past wrongs that society has committed or condoned against these minorities, and which wrongs have generated huge unearned and undeserved benefits and profits over hundreds of years of unjust societal behavior.

Not only does this decision kill significant and meaningful affirmative action as a "corrective" measure, it also, by implication and extension, kills any hope of significant and meaningful reparations.

But even worse, it may justify a kind of "reverse affirmative action." By which I mean that corporations may now be allowed to argue (and don't think an argument cannot be made) that there is a compelling interest or benefit to their operation, or profits, to be derived from weighing the racial or religious backgrounds of students or employees, and legally discriminating against certain categories (but not "too prominently"), if by doing so they can show that such discrimination is of compelling interest or benefit to their business and profits.

For example, Oral Roberts University, once punished and deprived of federal funding for its discriminatory racial policies, can now argue that its natural pool of potential enrollees is so strongly set against attending the same university as Blacks, that unless Blacks were excluded (or not-too-prominently reduced in number), its natural pool of potential enrollees will go elsewhere, affecting the income and operation of the University. This is, whether you like it or not, a perfectly true claim, and would make a compelling argument under the Michigan decision.

Not that we do not have Michigan-decision-type situations already in this country on a wide scale. For there is an unstated "gentleman's agreement," in force almost everywhere, under which government authorities do not bother Chinese and Japanese restaurants, for example, when they specifically solicit only Chinese or Japanese applicants for waiters' jobs (and specifically reject white applicants), because it is argued that patrons supposedly expect the staff of such restaurants to be Chinese or Japanese (although Koreans, Philippinos, and other nationalities are often hired because it is presumed, correctly, that most non-Asian Americans cannot tell the difference) and would cease to patronize those establishments if the waiters were "inauthentic" white, thus providing a compelling benefit or interest in excluding whites from these jobs.

How hard will it be, anent this recent Michigan decision, for corporations to begin discriminating against African Americans out of a demonstrably compelling interest or benefit in excluding them? American oil companies in the 50's were castigated and punished for secretly, and illegally, contracting with the rulers of Saudi Arabia and Kuwait not to send any American Jews to work for their companies in those countries. Today, however, under the Michigan decision, the oil companies could easily make a showing of very powerful and compelling reasons to engage in the kind of racial and/or religious discrimination they were forced to discontinue 50 years ago.

The "fairness" aspects of the Michigan decision are the most disheartening. For even if it were true that racial discrimination no longer exists in America (which is certainly not demonstrably true), expecting African Americans to compete and benefit equally with whites as members of this society, just because the law now (arguably) makes them legally equal to whites, is as blindly unrealistic as it is clearly and demonstrably incorrect.

For example, you can't take a man who has been fed on bread and water his whole life, while at the same time being chained tightly to a wall so that without exercise his muscles have almost totally atrophied -- then suddenly unchain him on Tuesday at 8 AM, give him a normal breakfast, and inform him that at 11 AM he will take part in a 10K foot race, which will determine how happy his future life will be. And, by way of additional (not very pertinent) information, also inform him that all the other runners against whom he will be competing in this race have been regularly eating nutritionally balanced organic meals all their lives, and have since childhood been following a training and exercise regime supervised by a champion Olympic coach. Is it to be expected that this person will have a fair chance of even finishing the race, let alone winning one of the top "happy life" prizes?

That is the analogous situation in which the average African American is born into (excluding, of course, the token few who have managed, by luck or by extraordinary skill and talent, to succeed wildly in spite of the many road blocks society placed in their path, and are thus foolishly -- or deceptively -- held up as proof that all is well and fair and just in America), must make the best of, and will probably never escape from without the application of massive affirmative action and/or substantial reparations, which the Michigan decision now clearly forbids.

Needless to say, the Michigan decision, ominous as it is, at least makes it clear that a vote for Draft A will also be a vote to condemn Pacifica to a slow and excruciatingly painful Death By A Thousand Lawsuits. I hope the iPNB and LABs are listening.

Steve Brown

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