Judiciary

Lee Bollinger, former president of the University of Michigan and defendant in Grutter v. Bollinger and Gratz v. Bollinger, penned an op-ed for the Washington Post. He still supports racial preferences. (Surprise!)

Bollinger quotes a letter George Washington wrote to Alexander Hamilton about points he should have raised in his Farewell Address–education and the university–to bolster support for lowering standards for members certain minority groups, but he gets the sentiment entirely backward:

There have been few moments in our history when the nation so badly needed institutions to unify the country, overcome divisiveness, and dispel the unfounded “jealousies and prejudices” that our first president warned against. As George Washington wrote to Alexander Hamilton, bringing together the youth “from different parts of the United States” at a university would allow young people to learn there was no basis for “jealousies and prejudices which one part of the union had imbibed against another part.”

It’s bizarre, but there it is. Bollinger believes (with a straight face?) that lowering standards for blacks, Hispanics, and other “preferred” groups and discriminating against everyone else quiets the “jealousies and prejudices” we humans hold against one another. In Bollinger’s head, considering an individual’s unchanging quality—his race—as an admissions factor overcomes divisiveness! Incredible. So individuals who’ve been rejected for being the wrong race are supposed to understand that such racial bean-counting is necessary for…the greater good?

This is the context of what Washington wrote:

Since then, revolving on the paper that was inclosed therein, on the various matters it contained, and on the first expression of the advice or recommendation which was given in it, I have regretted that another subject (which in my estimation is of interesting concern to the well-being of this country) was not touched upon also;—I mean education generally, as one of the surest means of enlightening and giving just ways of thinking to our citizens, but particularly the establishment of a university; where the youth from all parts of the United States might receive the polish of erudition in the arts, sciences, and belles-lettres; and where those who were disposed to run a political course might not only be instructed in the theory and principles, but (this seminary being at the seat of the general government) where the legislature would be in session half the year, and the interests and politics of the nation of course would be discussed, they would lay the surest foundation for the practical part also.

But that which would render it of the highest importance, in my opinion, is, that the juvenal period of life, when friendships are formed, and habits established, that will stick by one; the youth or young men from different parts of the United States would be assembled together, and would by degrees discover that there was not that cause for those jealousies and prejudices which one part of the Union had imbibed against another part:—of course, sentiments of more liberality in the general policy of the country would result from it. What but the mixing of people from different parts of the United States during the war rubbed off these impressions?

Blacks didn’t count in this equation, but that’s not the point. Consider this: Was Washington saying one kind of man should be assessed under different standards than another kind of man in this assembling together at university? His point isn’t admissions, of course; it’s gathering together different men from different parts of the country to study and to learn. Bollinger takes the idea of unifying such men and turns it on its head.

That’s just the first paragraph of Bollinger’s op-ed. He defends Grutter, which allows taxpayer-supported colleges and universities to admit and deny admission to individuals based on race, as long as it’s used as a “plus” factor (wink, wink).

Bollinger half-heartedly supports class-based preferences, preferring that schools use both race and income. Different men should be held to different standards so that students may have a “meaningful opportunity” to mix with people of different races. Inherent in this process is the rejection of a better qualified individual based on race. And that isn’t divisive?

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Larry Purdy was trial counsel for plaintiffs Barbara Grutter and Jennifer Gratz in racial preferences cases Grutter v. Bollinger and Gratz v. Bollinger.

He also wrote a book titled Getting Under the Skin of “Diversity”: Searching for the Color-Blind Ideal, in which he offered a rebuttal to The Shape of the River: Long-Term Consequences of Considering Race in College and University Admissions, a pro-preferences book written by former Ivy League presidents William Bowen and Derek Bok. (I reviewed Purdy’s book at Townhall).

I wanted to point you to Purdy’s latest article at the Pope Center about preferences, Fisher v. Texas, and the U.S. Supreme Court. An excerpt:

“Like Plessy v. Ferguson over 100 years earlier, Grutter permits racial discrimination for the flimsiest of rationales. In Grutter it is described as the quest to obtain the so-called ‘educational benefits’ of a diverse student body. It is a constitutional aberration that should be reversed.

“The Court has an opportunity in Fisher to right the wrong of Grutter.  It requires nothing extraordinary from the justices apart from a willingness faithfully to return to the bedrock principle unanimously established over a half century ago in Brown v. Bd. of Educ.—that ‘racial discrimination in public education is unconstitutional.’  Such an outcome would be a fitting coda to Chief Justice John Robert’s concluding phrase in the Court’s post-Grutter 2007 decision in Parents Involved, cited above.

“Every American of every race should hope the Court uses Fisher as the case to reverse Grutter and return the country to the principle adopted in Brown, a principle unanimously established in what, perhaps, remains the greatest case ever decided by our Court.

“I have written a document [10 pages in PDF] that gives a legal rationale for not only granting cert in the Fisher case, but also explaining in greater detail why the Supreme Court should reverse its decision in Grutter.”

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You’ll recall that the plaintiffs in Fisher v. Texas asked the U.S. Supreme Court to hear their case after the U.S. Court of Appeals for the Fifth Circuit upheld a race-based admissions policy at the University of Texas (UT). The plaintiffs contend the school discriminated against them on the basis of race.

Yesterday, the SCOTUSblog (sponsored by Bloomberg Law) reported on the pending case (emphases added):

“The Supreme Court has asked the University of Texas to provide a reaction to the new challenge to its race-based affirmative action policy on college admissions.  That request, noted yesterday on the Court’s docket for the case of Fisher v. University of Texas (docket 11-345), kept the case going even though university officials had simply avoided taking any action on it so far. (This blog posted this story when the case first reached the Court.)

“Since the petition by rejected white applicant Abigail Noel Fisher was filed on September 15, numerous contacts with university officials and others close to the case seeking a reaction about their plans have met with cryptic responses. For example, the university’s president, William Powers Jr., responding to one of those queries through an aide on Oct. 25, re-released an earlier statement saying that ‘the UT legal team is reviewing the petition for certiorari  and we will continue our very important defense of this case.’ The aide commented on his own: ‘We are unable to comment on this case or our legal strategy while the litigation is still pending.’

“Another person close to the case, though, had said in response to a query that the university had waived its right to respond to the petition. But the date for such a response — October 19 — came and went, and no waiver was ever noted on the Court’s docket. Waivers are not uncommon, but simple refusals to react in any way are highly unusual, especially in a high-visibility case. One reason for doing so may be to simply avoid taking a position, and, if a response is not then requested by the Court, leaving the case to be routinely denied review. It is unclear whether that was the reason the University of Texas and its counsel did not react.”

I think the author’s speculation about UT’s reasons for not reacting is close to the mark. UT hopes the issue just goes away. If the Supreme Court denies review, it certainly will. But since the court has asked the school to respond, it looks like the justices are at least trying to find ways to resolve the “controversial” issue of taxpayer-supported institutions of higher learning lowering admissions standards for certain minorities.

Also see the opinion article, “Outlaw color-coding of college students,” by the Pacific Legal Foundation’s Sharon L. Browne and the Center for Equal Opportunity’s Roger Clegg.

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