NOW THAT the Supreme Court has handed down the decision in the University of Michigan affirmative action cases, perhaps the demagoguery can stop.
During the months leading up to the June 23 decision, some in the pro-racial preference camp did not have their better moments. Notice the use of "racial preference camp" instead of "affirmative action" supporters. The affirmative action described in President Johnson's Executive Order 11246, issued on Sept. 28, 1965, specifically said things were to be done without regard to race. The 1964 Civil Rights Act says the same thing.
Although the language in both is clear, there are still some who insist things be done with regard to race. They call themselves supporters of affirmative action, but they should really call themselves racial preference adherents. They'd feel much better.
So the court ruled Monday that racial preferences are kind of good and kind of not-so-good, hovering in that nether region between illegal and legal, although the law of the land clearly says they're illegal. In the case of Gratz vs. Bollinger, the court ruled 6-3 that the point system Michigan used as part of its undergraduate admissions criteria was unconstitutional. Justices Sandra Day O'Connor and Stephen Breyer voted with the majority on that one.
In the case of Grutter vs. Bollinger, O'Connor and Breyer defected to the other side, voting with the 5-4 majority that ruled the University of Michigan law school's use of racial preferences in admissions was just fine and dandy. The law of the land is no longer what the law says. It's what Supreme Court justices say it is.
O'Connor and Breyer should have ended up running through the halls of the High Court shouting "My kingdom for a backbone!" after pulling the greatest wimp-out by an associate justice (or justices) in years. But they didn't. They performed their feat of judicial legerdemain with straight faces, and the news media hailed the decision in Grutter - a victory for racial preferences - as a victory for affirmative action. The use of race as "one of many factors," as the five justices ruled in Grutter, is A-OK.
In a way, this may be good news for those on the right who support racial profiling. The forces of racial preference saddle up their horses and lead a four-abreast cavalry charge against the forces of evil (that would be those of us on the right) whenever they sniff racial profiling afoot. The racial preference cavalry seems unaware that supporters of racial profiling use the same argument they do: Race is only one of many factors.
Racial profiling advocates say cops use race as only one of many factors in traffic stops and field interviews. Police not only use race, but also use gender, age, style of dress, location and type of vehicle if the situation involves a traffic stop. Since racial preference supporters condone the use of race as one of many factors, they should now kindly climb down off the backs of the nation's police officers about racial profiling.
Of course the philosophy of the racial preference brigade won't have it that way. Use racial preferences when they benefit "underrepresented minorities," chuck 'em when they benefit anybody else. That may be why a couple of the racial preference folks resorted to sheer demagoguery in the months before Monday.
We heard Michigan Rep. John Conyers standing in front of the Supreme Court in April, when the first arguments in Gratz and Grutter were given. Addressing a rally of racial preference supporters, Conyers described the lawsuits as "a Plessy vs. Ferguson moment."
In March, Maryland Rep. Elijah E. Cummings accused President Bush - whose administration filed a brief with the court condemning racial preferences in admissions - of trying to keep black students out of the University of Michigan, as if black students could only get admitted to the school with that point system.
Conyers, in his dotage, may not know better, but Cummings does. Most whites don't get into Michigan and other highly selective schools. Most blacks don't, either.
The truth is, some 80 percent of America's college students go to schools that are considered "broad access" and admit students without regard to SAT scores for grade point averages. Sun education reporter Mike Bowler reported in May that most of the freshmen at Baltimore City Community College - predominantly black with students drawn from Baltimore's predominantly black school system - need remedial help in math, English and reading.
So the forces of racial preference think they won something June 23. They'd better scroll back to May 4, read Bowler's story and then ask themselves what they've really won.