On November 16th, with my ACLU membership card fully paid up and firmly in it place in my wallet, I attended the oral arguments held in the federal district court in Gratz v. Bollinger, the lawsuit brought by two unsuccessful undergraduate applicants for admission to the University of Michigan.  The gist of their case is that the University, by using a point system for ranking applicants which admittedly gives a tremendous advantage to members of minorities, unlawfully discriminates against more qualified non-minority applicants who, but for the added boost given to the minority applicants, would have otherwise been admitted as freshmen at Michigan.  The plaintiffs claim that the University's practice is an unlawful racial discrimination which violates the Equal Protection Clause of Fourteenth Amendment and the 1964 Civil Rights Act.

       In its defense, the University contends it is entitled to admit a more racially diverse undergraduate class than would be admitted if grades and achieve test scores were the primary criteria and, to achieve that lawful end, it must use different criteria to evaluate minority and non-minority applicants.  It is affirmative action in college admissions.  If the extra points were not given to minority applicants, much fewer minority student would be admitted.

       Interestingly, both sides use the seminal 1978 California case of Regents v Baake to bolster their argument, each claiming that Justice Powell's opinion in Baake is dispositive of the issues in the case.

       The goal sought by the University, a racially diverse student body more reflective of the general population, is both admirable and lawful.  However, the manner in which it seeks to achieve that end is neither.  As practiced by The University in its undergraduate admissions processing, affirmative action is a well-intentioned and good idea run amuck.

    Past wrongs visited upon minority groups (racial discrimination in the form of unequal educational opportunity) cannot be repaired by the employment of the very device sought to be remedied, i.e., the unequal treatment of the races by a publicly funded institution.  To assert otherwise is nothing more than embracing an "ends justify the means" argument which is a quick and slippery slope to the justification of almost any illegal act.

       Further, admitting students who would otherwise be unqualified but for their skin color or ethnic background, cheapens the values of the education and degrees of everyone at the University receives, whether minority or not.  If the best and brightest applicants are sacrificed on the altar of the appearance of racial equality, then the level of educational quality must necessarily be adjusted and compromised to accommodate the admittedly lower-achieving students present in the classrooms.  Eventually, if not already, the standards of instruction will suffer and cause the reputation of the University, now arguably the finest public university in the world, to lessen.

      I am aware the ACLU and many other liberal organizations support the Michigan admissions process.  However, the true civil libertarian abhors racial discrimination in every and any form, even when done in the name of remedying past wrongs.  The ends never justify the means when the means are, themselves, illegal, immoral or just plain wrong.

       The way to fix the underlying problem of lack of racial and ethnic diversity in the applicant pool at Michigan is not to dumb down the admissions process to admit otherwise unqualified students -- it is accomplished by smarting-up the schools which feed the University so that when the Afro-American or Hispanic applicant gets that thick envelope in the mail meaning an admission, he or she can know the achievement is real and genuine and was not granted for any reason other than the accomplishments of the individual and not because of an accident of birth or any racial factor wholly unrelated to education.  And that moment will feel much better to that student forever.