Just one justice away from blow to equal protection Just one justice away from blow to equal protection
BY LARRY KOBROVSKY
A momentous debate is taking place in our nation's capital that will decide what it means to be an American in the 21st century. Are we individual citizens in a nation based on the concept of equality of opportunity, where your success or failure in life is to be determined by your own individual efforts?
Or are we a nation made up of competing racial and ethnic groups in which your entitlement to a job or education is to be determined by how numerous or politically powerful the ethnic or racial group you are born into is? That is the issue currently being debated and will soon be decided in the U.S. Supreme Court in the University of Michigan case.
The diversity of America is something that makes us strong, but the glue that holds us together is the expectation and guarantee that we are all going to be treated the same, regardless of what we look like or where we come from. The legal source of that expectation and guarantee is the Equal Protection Clause of the 14th Amendment to the Constitution and the Civil Rights Act of 1964.
The Equal Protection Clause, simply and eloquently, guarantees us that "no State shall deny to any person within its jurisdiction the equal protection of the laws." Section 601 of Civil Rights Act of 1964, simply and eloquently, guarantees us that "no person in the United States shall, on the ground of race, color or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or authority receiving Federal financial assistance."
We are now one Supreme Court justice away from losing both of those guaranteed protections. There are nine members of the Supreme Court. Four have all but declared their eagerness to overturn these protections, and four have equally tipped their intent to maintain these protections. Justice Sandra Day O'Connor has given out mixed messages. It will be her vote that decides. At issue is the admission policy at the University of Michigan. An applicant from a racial or ethnic group whose inclusion is considered desirable in reaching the right "mix" of students is given 20 points toward admission.
An applicant whose race or ethnicity is not considered desirable toward achieving that "mix" is given 0 points. Twelve points are given to an applicant who gets a perfect 1600 on the College Board SAT, meaning that that applicant has answered every single question right on both the Verbal and Math sections of the test. An applicant whose high school career evidences the highest level of accomplishment can get up to a maximum award of five points for the category of "Personal Achievement."
An applicant whose application essay is rated as "excellent" can get up to two points toward admission for writing skills in the category of "Essay." This means that an applicant from a racial or ethnic group considered desirable in the eyes of the university can fail to answer a single question right on the SAT, can fail to exhibit any personal achievement in high school, can fail to even know how to write an essay, and can still accumulate 20 points toward admission.
That applicant will still start out one point ahead toward acceptance over an applicant from a racial or ethnic group considered undesirable, who answers every single question right on the SAT, has the highest rating possible for personal achievement in high school, and writes an essay rated excellent. No matter how smart you might be, no matter how hard you work, no matter how well you have mastered the art of writing, you cannot compete equally against an applicant whose bloodlines are considered more desirable toward achieving the political goal of the right "mix" of students.
The University of Michigan's Admissions Policy is in reality a return to "Separate But Equal" in that to achieve the stated goal of a desirable student "mix," they have set up different standards of admission for applicants of different racial and ethnic groups. Former Supreme Court Justice John Marshall Harlan once explained in his dissent in Plessy vs. Ferguson that, "Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law.
The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved." Sadly, we are one Supreme Court justice's vote away from Justice Harlan's vision being relegated to a wistful memory in the attic of our country's history.
Larry Kobrovsky is a former member of the Charleston County School Board
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