Courting Racial Diversity

Like many Americans, the Supreme Court can seem befuddled about race - it's avoided a definitive ruling on the issue for more than two decades. Perhaps many of its justices prefer to let solutions to America's biggest social problem evolve incrementally through legislatures and social trends rather than by sweeping constitutional fiat.

But in deciding to take two cases that challenge race preferences in college admissions, it may be signaling that the time is ripe for strong judicial action.

The high court will hear oral arguments in March, and likely decide by June 30 on separate but similar cases coming out of the University of Michigan. White applicants to the university's law school and its main undergraduate school argue that they were not admitted after less-qualified black applicants were given special consideration.

Not since 1978, in a ruling known as Bakke, have the justices taken on such clear-cut and potentially sweeping cases involving racial preferences. Bakke ruled out quotas as a tool to remedy past discrimination, but a side opinion by Justice Lewis Powell opened a door for using race as one of many considerations to attain diversity on campuses.

The university, like many schools and companies, argues that there is a compelling societal interest in promoting racial and ethnic diversity that provides an enriching experience.

The court must decide whether such diversity is worth the social cost of discriminating by race. Its decision may turn on whether the university used numerical measures in its admission decisions.

One signal of the court's intent is that it took one of the cases without waiting for one of the appeals courts to rule. One plaintiff argued that white applicants will continue to suffer if the high court waits. By the court's own rules, it can grab a case early if it is of "imperative public importance." The university had asked the court not to take the case, hoping to keep its current practice in place.

The high court may realize that many lower courts, as well as many states, are sending mixed signals on race-based policies by their decisions. The Bakke decision, in not being definitive, opened a can of worms that the court must now fix.

The justices could decide that universities and other institutions seeking racial diversity have alternatives to giving selected minorities an edge in admissions. Texas and California, for instance, have abandoned race-based admissions and found other ways to provide minorities with higher education. Colleges, for instance, can work with mainly minority high schools to nurture qualified applicants.

A clear answer from the court will at least establish some principle for further closing America's racial divide.

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