|
|
|
July 11, 2003/Tamuz 11 5763, Vol. 55, No.46
Supreme Court ruled contrary to ConstitutionDAVID FRAZERIn the June 27 issue of Jewish News, the article "Jews applaud affirmative action rulings" referred to the recent dual decisions by the Supreme Court involving the University of Michigan affirmative action programs in its undergraduate school and law school.As a University of Michigan Law School alumnus, I have followed this case closely and have read the briefs and the transcript of the oral arguments. As a result, I, along with many other Jewish people, feel that Justice Sandra Day O'Connor's 5-4 majority opinion in the law school case is contrary to the 14th Amendment. It is also inconsistent with the historic goal of the civil rights movement, which was and is to achieve equal rights and opportunities for all Americans, whether black, white, red or brown. In the undergraduate case, the Supreme Court ruled 6-3 that the automatic 20 points given to black, Hispanic and Native American students (out of a possible 165) was equivalent to a quota system and thus unconstitutional under the 14th Amendment. In the law school case, the Supreme Court majority reasoned that since there was not an automatic number of points given to minority students, there was no quota, and it allowed the concept of diversity to trump the Constitution. As a matter of accuracy, the law school had more of a quota for minority students then did the undergraduate school. In the oral arguments before the Supreme Court, legal counsel for the University of Mich-igan in the undergraduate case conceded that for diversity purposes, 8 to 12 percent of the class should consist of the privileged minorities. This would satisfy the school's definition of a "critical mass" needed to create a diverse student body. After refusing to answer the "critical mass" definition questions for three-fourths of his argument time, the legal counsel for the Michigan Law School grudgingly admitted that for the past four years, the number of privileged minorities who entered the law school class totaled 12 to 17 percent. Three out of four of the privileged minority students received a significant preference. This is simply a disguised quota. To put it another way, the majority of the Supreme Court conclud-ed that an automatic 20 point preference resulting in a quota of 8 to 12 percent in the undergraduate school was unconstitutional, but a disguised quota of 12 to 17 percent in the law school was somehow constitutional under the same 14th Amendment. This Supreme Court decision was nothing more than succumbing to political correctness. This is not what Dr. Martin Luther King, Jr., and others fought to achieve. Reverse discrimination, which is what this case is all about, is not a part of the 14th Amendment. It is just the opposite. Lawyers and concerned citizens always hope that Supreme Court decisions will help to solve difficult legal issues with social implications. The Court was eminently successful in doing so in Brown vs. The Board of Education in 1954 and in University of California vs. Bakke in 1978. In the University of Michigan case, the Supreme Court would have been better advised to take seriously the words of Frederick Douglass in a speech to a group of abolitionists 140 years ago: "In regard to the colored people, there is always more that is benevolent, I perceive, than just manifested toward us. What I ask for the Negro is not benevolence, not pity, not sympathy, but simply justice - If the Negro cannot stand on his own legs, let him fall - All I ask is, give him a chance to stand on his own legs. Your interference is doing him positive injury." Scottsdale resident David Frazer can be contacted at dfrazer@frgaglaw.com. |
