Affirmative action: the court muddies the waters.

• Author: Bresler, Robert J.
• Position: State Of The Nation - Lawsuit analysis

IN ITS 2002-03 TERM, the Supreme Court opened the door to more contention and confusion over the issues of affirmative action and gay rights. In three landmark decisions, the Court assured the country that our tiresome culture wars will continue, with even greater intensity. As discussed in my last column, the case of Lawrence v. Texas, overturning that state's homosexual sodomy law, has opened up the possibility of judicial authorization of gay marriage. This issue promises to stay around for a long while.

At the same time, the Court declined to put the question of racial preferences to rest in college admissions practices. The Court previously had established a very high standard for any racial preference initiative. Such programs would have to serve a compelling state interest and must be narrowly tailored to meet that compelling interest. To the surprise of many, the Court did not take its lead from the Fifth Circuit Court of Appeals decision (Hopwood v. Texas) and declare that racial diversity was not a compelling justification for racial preferences.

Instead, two University of Michigan affirmative action cases (Grutter v. Bollinger and Gratz v. Bollinger) have further muddied the waters by assuring an endless parade of affirmative action lawsuits. On June 23, the Supreme Court upheld the affirmative action policy of the University of Michigan Law School (Grutter) and overturned the affirmation policy of the undergraduate college (Gratz). Justice Sandra Day O'Connor cast the swing vote in both cases. In Gratz, the Court dismissed a blatant racial preference scheme that gave a number of points to all applicants in certain racial categories--in violation of the equal protection clause of the Fourteenth Amendment. Yet, this obvious quota system was only struck down by a five-to-four vote.

In Grutter, the outcome was quite different and more disturbing. O'Connor, writing for another five-to-four majority, endorsed the idea that student body diversity was a compelling state interest justifying the use of race in university admissions and ignored the lower court opinion in Hopwood. The Court majority bought the diversity rationale in the face of extensive research that such a policy does not promote tolerance or understanding for the views of others. Students frequently separate themselves by race, and minority students often exhibit a militancy they never embraced in their more integrated high schools.

While championing racial diversity...