John Leo
Some analysts assure us that the Supreme Court's affirmative-action decisions represent a moderate, split-the-difference approach, since the undergraduate preference plan at the University of Michigan was invalidated, while the university's law school plan was upheld.

But the undergraduate plan was a no-brainer. Almost all minority applicants were being admitted, regardless of low grades, so the court concluded, 6-3, that it was an illegal quota plan. The problem is that the court upheld the law school plan, which was geared to produce approximately the same quota-like numbers as the undergraduate arrangement but was a bit more subtle about how it operated.

The difference between the two plans is merely cosmetic. Is the racial advantage at the law school merely the kind of "tip" or "plus" factor allowed under Justice Lewis Powell's rule in the 1978 Bakke case? Well, no.

Law school figures show that race is a massive factor in admissions, worth more than one GPA point or at least an 11-point or 20-percentile boost on the LSAT. Three out of four minority law students at Michigan would not have been let in if they had been white or Asian.

Sandra Day O'Connor, once again a hesitant swing vote in a 5-4 decision, could not bring herself to strike down the law school system, though it's clearly the equivalent of an unconstitutional quota plan. She produced the kind of prose that only a jurist in deep denial can generate. Her majority opinion announced that the heavy-handed Michigan law school system "bears the hallmarks of a narrowly tailored plan."

Then she added another howler: "The program must remain flexible enough to ensure that each applicant is evaluated as an individual and not in a way that makes an applicant's race or ethnicity the defining feature of his or her application." Oh, sure. The school thoughtfully analyzes each candidate on an individual basis, then among applicants with mid-range credentials, where only 22 percent of whites and Asians are admitted, 99 percent to 100 percent of non-Asian minorities are allowed in.

The court says universities cannot "insulate applicants who belong to certain racial or ethnic groups from the competition for admission." This is another lofty statement that has nothing to do with reality. Insulation from real competition is precisely what is going on at Michigan's law school. The system clearly reflects the patronizing notion that blacks and Latinos cannot be expected to compete like members of other groups.

John Leo

John Leo is editor of and a former contributing editor at U.S. News and World Report.

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