The 9th Circuit Court of Appeals upheld the diversity scheme in an unusual 7-4 en banc decision, reversing a three-judge panel that had struck down the plan. But no one is quite sure what the Supreme Court will do, especially given the changes on the Court itself. Former Justice Sandra Day O'Connor was the swing vote in the Michigan cases, voting for race as a factor in admissions to the law school, but striking down the university's undergraduate admissions program that granted extra points to black and Hispanic applicants. All eyes will be on the Court's newest members, Chief Justice John Roberts and Justice Samuel Alito.
This set of cases will give the Supreme Court the chance to get it right, finally, on whether there can ever be a good reason to discriminate on the basis of race. The Court blew it when it had the chance to do so in the Michigan cases, choosing to allow a little bit of discrimination. But in issues of racial discrimination, there can be no middle ground. Judging someone by the color of his skin is wrong, period. You can't undo past wrongs by perpetrating new ones, even on a temporary basis, as the Court tried to do in the Michigan cases by suggesting affirmative action was needed for another 25 years.
And in Seattle, there is not even the excuse that some past wrong must be righted (not that there was such justification at the University of Michigan, either). The Seattle plan is a quota system by another name. Whenever a school reaches its quota of white students (or minorities), no more students from that racial group may attend, with a few minor exceptions for siblings.
It's time the Court returned to the principles of Brown v. Board of Education, the landmark 1954 case that struck down racial segregation. Race has no place in the assignment of students to public schools.
Linda Chavez is chairman of the Center for Equal Opportunity and author of Betrayal: How Union Bosses Shake Down Their Members and Corrupt American Politics .
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