But the legal game is far from over.
By Thomas J. Bray
Wall Street Journal Opinion Journal, December 19, 2000
Jesse Jackson, the NAACP and other activists are claiming that Florida’s electoral system “disenfranchised” thousands of black voters. And it’s true that in many heavily black precincts, a disproportionate number of ballots were thrown out for lack of a proper presidential vote. But the reason these citizens were more likely to have trouble voting is not that they are black; it is that too many of them cannot read.
As President-elect Bush suggested during the campaign, the real disenfranchisement of minorities is taking place in big urban school systems that practice what Mr. Bush calls “the soft bigotry of low expectations” and have persistently failed in their most basic civic function: to produce an electorate that, among other things, is competent to exercise the rights of citizenship.
Now, thanks to several recent federal court rulings, fundamental reform of those systems has gotten tougher.
In Cincinnati, a three-judge panel of the Sixth U.S. Circuit Court of Appeals ruled 2-1 to strike down Cleveland’s three-year old voucher experiment on grounds that it violated the Establishment Clause by mostly benefiting sectarian schools. Coming on the heels of big defeats of voucher referendums in California and Michigan, the Cincinnati decision has public-school advocates proclaiming the death of vouchers.
Meanwhile in Detroit, a federal district judge upheld the University of Michigan’s system of race preferences. It was the second such finding this month; on Dec. 4, the Ninth U.S. Circuit Court of Appeals went out of its way to uphold the University of Washington Law School’s preference system–even though the university shut down the system in 1998 after Washington state voters approved a referendum ending such practices.
Still, it’s too early for those who oppose vouchers and favor racial preferences to break out the champagne. Vouchers have been gaining new respect in certain quarters; such liberal voices as The Wall Street Journal’s Al Hunt and the Washington Post editorial page, which before the election opined that the miserable performance of urban systems justified “state by state experimentation” with alternative ideas, including vouchers.
And the Cleveland case invites U.S. Supreme Court review. Judge James Ryan, in a scorching dissent, accused the two judges in the majority (one of them appointed by President Bush) of writing an opinion “rooted in nativist bigotry.” More to the legal point, he pointed out that the majority opinion rested on a 1973 Supreme Court case from New York whose principal holdings have been greatly undermined by more recent high court opinions.
Proponents of racial preferences may have received only a temporary reprieve as well. The Center for Individual Rights–which won the 1996 Hopwood v. Texas case in the Fifth Circuit, holding the University of Texas Law School’s racial preferences unconstitutional–says it will appeal Judge Patrick Duggan’s ruling in Michigan. Judge Duggan’s decision seems vulnerable on several important counts.
For one, it relied on some highly dubious social science purporting to show that students exposed to “diversity” do better in life. But the study was conducted by one of the university’s own professors who is interim dean of the liberal arts program. Meanwhile, the judge simply brushed aside countervailing testimony submitted by the National Association of Scholars, an independent group that has been critical of preferences and political correctness.
And while the judge’s decision to uphold the current Michigan admissions system got virtually all the attention, he also struck down the preference system that had been in place at the university until 1998. The university had quietly dropped that system after one of its own professors had discovered, through a Freedom of Information Act request, that Michigan was using an obviously illegal quota system.
Yet even the university acknowledges that the results of the new system, which gives undergraduate minority applicants an automatic 20-point advantage (on a 150-point scale that provides only 12 points for a perfect SAT score) are no different than the old. As the judge himself was forced to concede: “If race were not taken into account, the probability of acceptance would be cut dramatically.”
In other words, race is arguably still far more than the “plus” factor allowed under the 1978 Bakke decision. If the Supreme Court agrees to take the case, the justices might narrow the grounds for racial preferences still further–or strike down the tenuous Bakke decision altogether.
President-elect Bush has said his top priority as president will be to instill more accountability in the nation’s elementary and secondary schools. The Cincinnati and Detroit decisions uphold two barriers to such accountability–the public-school monopoly and state universities’ practice of compensating for education failures by lowering admissions standards for minority students. Expect liberals in Congress to cite these legal rulings as reasons conservatives should accept the status quo and settle for spending more money on the existing, failing system. Mr. Bush shouldn’t listen. A closer look at the decisions shows that the legal game is far from over.