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PostWatch: An irregular correction to the Washington Post

Brought to you by Christopher Rake


Thursday, January 16, 2003
12:56 PM

NRO's Roger Clegg says what I'm thinking about the Michigan affirmative action situation, except he knows what he's talking about:

Here's the problem, and I'll try to keep the lawyerese to a minimum: The Supreme Court's case law makes clear that, when a government institution — like a state university — discriminates on the basis of race, that discrimination will be subjected to "strict scrutiny." It can pass strict scrutiny only if it passes a two-pronged test. Number one, it must have a "compelling interest" — that is, a really good reason — for the discrimination. Number two, the use of race must be "narrowly tailored" to achieving that compelling interest.

It is clear from the president's remarks and the subsequent discussion with the press that the Bush administration's brief is going to say that the UM program fails the narrow tailoring test. What is not clear is what, if anything, the administration will say about whether UM has a compelling interest in using race in the first place....

The trouble is that, if the Court doesn't address the compelling-interest issue, and instead rules only on the narrow-tailoring point, then nothing will change. Schools will make a few cosmetic changes in their programs, but continue to discriminate. We know this because that has been the whole sorry history of the 25 years following the Bakke decision.

If the Bush administration doesn't take a stand on the compelling interest issue, then the Court might be reluctant to as well. The justices might want some reassurance that they won't be the only ones standing up for a broader principle of nondiscrimination.

Remember, the brief hasn't been filed yet--the deadline is 11:59 this evening.

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