Michael Barone

Schuette v. BAMN shouldn't have been a hard case. The Fourteenth Amendment outlaws racial discrimination. Racial quotas and preferences are, by definition, racial discrimination.

Fifty-eight percent of Michigan voters in 2006 voted to prohibit racial quotas and preferences in admission to state colleges and universities.

As Justice Antonin Scalia asked in his concurring opinion in Schuette v. BAMN, announced April 22, "Does the Equal Protection Clause of the Fourteenth Amendment forbid what it expressly requires?"

He went on, "Needless to say (except that this case obliges us to say it), the question answers itself."

So why did this case go all the way to the Supreme Court? Why did the justices feel obliged to write five separate opinions while upholding Michigan 6-2? Why did only one other justice, Clarence Thomas, sign onto Scalia's concurrence?

The short answer is that university, media and corporate elites have an enormous emotional investment in maintaining racial quotas and preferences.

That investment goes back half a century, to the years just after passage of the Civil Rights Act of 1964, which enforces the Fourteenth Amendment's ban on racial discrimination.

The hopes of its advocates were in some ways exceeded. White Southerners, who had reacted violently to black Freedom Riders a few years before, quickly acquiesced in integration of public accommodations.

The Nixon administration acted swiftly and decisively to end racial segregation in Southern schools.

Elite universities across the nation had already been admitting blacks for years. But they found that relatively few blacks had the test scores and high school records normally required for admission.

So they instituted "affirmative action," a euphemism for racial quotas and preferences. In time, Hispanics -- a category invented in 1970 by the Census Bureau -- were added to the list, anomalously, since most were the offspring of immigrants who had never suffered racial segregation in the United States.

Such practices were effectively upheld by the Supreme Court's 1978 Bakke decision, in which Justice Lewis Powell, casting the decisive vote, said that race could be "one factor" in admission decisions, in order to attain racial or ethnic diversity.

At that point, it was still barely arguable that racial quotas were fair compensation for past racial discrimination. That argument was weaker when the Supreme Court faced the issue again in the 2003 Gratz and Grutter cases.

Michael Barone

Michael Barone, senior political analyst for The Washington Examiner (www.washingtonexaminer.com), is a resident fellow at the American Enterprise Institute, a Fox News Channel contributor and a co-author of The Almanac of American Politics. To find out more about Michael Barone, and read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate Web page at www.creators.com. COPYRIGHT 2011 THE WASHINGTON EXAMINER. DISTRIBUTED BY CREATORS.COM