Yes to Diversity -- and Fairness

Douglas W. Kmiec, who was constitutional legal counsel in the Reagan and first Bush administrations, is dean and professor of law at the Catholic University of America and a senior policy fellow at Pepperdine University.

Nearly a half-century ago and before he was on the Supreme Court, the eloquence and insight of Thurgood Marshall's arguments in Brown vs. Board of Education helped us see the illogic and immorality of "separate but equal."

Now, with equivalent incisiveness, President Bush has illustrated why it is likewise illogical, immoral and unconstitutional for a public school like the University of Michigan to blatantly select students on the basis of race -- even as it is good for a university to seek diversity of experience through nonracial means.

Apparently, Bush came to this position unaided by some otherwise very bright White House advisors. Both Secretary of State Colin Powell and National Security Advisor Condoleezza Rice have since said they do not believe that racial diversity can be fully achieved by nonracial means. They are mistaken. To insist that race must be a factor indulges stereotypes and confesses an inability to differentiate group from individual assessment, which is what a fairly conducted university admissions process must be about.

The equal protection clause of the Constitution outlaws quotas under any circumstances and forbids the government from employing race-based policies when race-neutral ones are available. The principled coherence of the president's argument can be appreciated best, however, when compared with the fuzziness of past legalisms and cases. In University of California vs. Bakke (1978), the Supreme Court invalidated a racial quota but also divided the lower courts in its wake. Justice Lewis Powell suggested race could be used as an undefined "plus factor." Whatever the now-deceased justice meant by that, it cannot possibly mean the virtual guarantee of admission of favored minorities given by the University of Michigan.

This is where many on the conservative side of the ledger would have ended the discussion. But Bush did not. Rather, he addressed political and legal reality. Politically, diversity is an educational good. Legally, moreover, few doubt that racism still exists and affects those who encounter it. This is why, in denying the new forms of racism, it was essential for Bush not to be insensitive to race. He wasn't.

Some conservative lawyers and pundits urged the president to say diversity could never matter. But his proposition was more nuanced and more congenial to the aims of higher education: Diversity as a matter of law cannot justify racial discrimination because ample race-neutral means exist to guarantee diversity. Perhaps it means taking the top students from all high schools, even those in previously underrepresented districts, or discerning in personal essays or references a willingness to bring unique views into the classroom. But it cannot mean having applicants check a race box, and -- if theirs is a favored one -- automatically jump forward in the selection process.

How did we come to this happy end? No doubt part of the success is traceable to Alberto Gonzales, the president's White House lawyer, who as the son of Latino migrant farm workers overcame disadvantage and came to a life of achievement. Gonzales' life experience allowed Bush to understand the reality of racism without giving up the core principle that public decisions based upon race are anathema.

Even though the Wolverine was pressing at the door for illicit and unconstitutional preferences, Bush and his lawyers illustrated how a genuine commitment to race-neutral inclusion is not only possible but right. Bush has made it tenable to be both for diversity and against racism.

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