As promised yesterday, we have obtained an exclusive statement from plaintiffs’ lead counsel (our friend Kirk Kolbo) in the University of Michigan cases pending in the Supreme Court. We asked Kirk to comment on the administration’s friend of the court briefs that were filed last week.
Kirk has been living and breathing these cases for the past five years. Despite his passion for the principle involved in the cases, he has the soul of a gentleman and a scholar. He takes his victories where he can get them and looks on the bright side. Some of what he says here may be subject to a slightly ironic reading, but his remarks are compelling and we present them to you unedited as a Power Line exclusive:
“While we would have welcomed the administration’s views on the legal quesiton of whether ‘diversity’ could ever be an interest sufficiently ‘compelling’ to justify racial preferences in admissions, we are pleased with the arguments that the administration has made in its briefs. Although confident that the Michigan systems are illegal, we cannot take for granted the position of the Court on that matter. And any ruling that race may not be used to achieve diversity probably depends on the Court first concluding that these particular systems are illegal. Accordingly, we believe it is of great help that the administration has offered its view that the policies at issue in both cases are illegal.
“The briefs do not offer any support for the view that diversity is a compelling interest justifying racial preferences. They refer to the ‘paramount’ importance of maintaining public institutions that are ‘open and available’ to all, including all races, but that is certainly not an endorsement of the diversity rationale for racial preferences. Generally, when the briefs discuss diversity, it is in the context of ‘experiential’ or ‘educational’ diversity, which in our briefs we point to as something different from ‘racial’ diversity.
“The nomenclature in equal protection cases is also often crucial. For some forms of discrimination, e.g., gender, age, it is enough for the government to demonstrate an ‘important’ objective for classifications based on those criteria. Not so in race cases. The interest must be ‘compelling.’ So while it may seem counterintuitive, references to diversity (whether educational, racial or whatever) as ‘important,’ see., e.g. Grutter Br. at 10; Gratz Br. at 14, are of no real help to the University. Indeed, such references may be seen as an implied representation that the diversity rationale does not pass the strict-scrutiny standard.
“Most interesting to me is that some of the administration’s arguments are attacks on the diversity rationale itself, although not expressly identified as such. For example, both briefs attack the absence of temporal limits for the racial preferences. See, e.g., Gratz Br. at 26 (‘Indeed the logic and inevitable outcome of the University’s policy would permit it to rely on racial and ethnic admissions preferences indefinitely to obtain and sustain any racial balance, including proportional representation or ‘outright racial balancing,’ it believes contributes to its educational mission.’ We make the same point in our briefs to demonstrate that the nature of the interest is one that defies having any logical termination date. Second, the briefs assail to some degree the inherent arbitrariness of the diversity rationale. The foregoing quote makes the point, as does this one: ‘[T]o endorse the Law School’s pursuit of a critical mass is to allow universities to discriminate against members of minority groups that are currently disfavored, politically unpopular, or simply out of vogue with academicians.’ Grutter Br. at 31. There are encouraging cites to Croson, Adarand and Justice O’Connor’s dissent in Metro Broadcasting on these points, which are also at the heart of our attack on the argument that diversity is a compelling interest.
“Finally, we do disagree with the administration that the Court can reasonably avoid deciding whether diveristy is a compelling interest. The cases are class actions in which injunctive relief is sought. The district court in Grutter enjoined the consideration of race to achieve diversity. I don’t know how that judgment can be meaningfully reviewed without answering the question whether the University can in the future use race as a factor to achieve diversity. Of course, the adminstration did not explain how either.”
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