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.
The court says race-conscious admission plans don't "unduly harm" individuals who are not members of the favored racial and ethnic groups. But white and Asian applicants who keep losing out to favored minorities with much worse credentials might take a different view of whether any "undue harm" is occurring.
So the court's message boils down to this: Quotas are bad, but finagling to assure quota-like results is good, as long as the finagling isn't too obvious. Finagling shouldn't be hard -- the promoters of preference policies have been at it for years, shrouding their admission plans, cutting corners, hiding the numbers, suppressing bad news, sometimes trying to get away with clearly unconstitutional plans.
Why so much dishonesty? Stuart Taylor Jr. of National Journal says preference policies "can only live on lies, because the oft-obscured reality of racial preferences offends the values of most Americans of all races."
Exactly right. The dishonesty is built into preference policies because backers are aware that public opinion, though supportive of the broad and vague term "affirmative action," is lopsidedly opposed to preference policies and has been since the mid-1980s. This is true even among preferred minorities. For example, a Washington Post/Kaiser Foundation poll in 2001 showed that 86 percent of blacks opposed preferences and said that hiring, promotions and college admissions should be based strictly on merit.
In her dissent on the undergraduate decision, Justice Ruth Bader Ginsburg made a remarkable comment on the preference lobby's pugnacity and will to win in the face of public disapproval. She wrote that universities "may resort to camouflage" if not allowed to install frankly preferential policies. Since this is so, she said, candid preference plans are better than achieving high minority numbers "through winks, nods and disguises."
Chief Justice Rehnquist rebutted this dubious accommodate-the-evaders advice in his majority opinion. He said Ginsburg believes we should deal with university violations "not by requiring the universities to obey the Constitution, but by changing the Constitution so that it conforms to the conduct of the universities."
One can argue that this is exactly what the court did in its shameful handling of the Michigan law case: It swept aside all consideration of equal protection and approved a lightly disguised quota system that a better court would have struck down decisively. This was not a good day for the Constitution or the court.