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June 23, 2003

O'Connor: Diversity trumps Constitution

The Supreme Court has ruled that the government, in the form of the University of Michigan Law School, can use race as a criteria in its decisions, but only if it counts a little bit. In a simultaneous ruling, race is disallowed if it used too much.

In the process, the Supreme Court defined a "diverse" student body as a "compelling [government] interest" - compelling enough to bypass the Equal Protection clause of the Constitution as extended through the 14th Amendment. If a "diverse student body" is a compelling government interest, what about the War on Terrorism? What about "Protecting our Children [trademark Hillary]?" What isn't a compelling government interest, to a court so focussed on tangential issues? Setting the bar so low for the compelling interest test opens up a vast range of constitutional abuses.

Many "civil libertarians" will cheer this decision. What will they say if the court finds a compelling interest in the diversity of ideas at a university, and mandates an ideological filter on professors, carefully balancing them between the current political ideas?

What if a state legislature requires the teaching of Biblical Creationism? Violation of First Amendment? Nope... compelling interest trumps - at least for that state government.

Equality under law is arguably the most fundamental principle of America, one motivating many of those who fought and died in the Civil War, and one which has been at the basis of many of the important social justice movements in our history. It has a history of progress, from the end of slavery to women's sufferage.

But now, it is in retreat. Equality under law, and all other constitutional guarantees, are now subject to a whimsical "compelling government interest" test.

This ruling is a travesty. It is yet another case where the court is choosing to legislate, using the sham of "compelling government interest" to impose its ideological views. The court seeks to provide an advantage to "minority students", but it dare not say so. Instead it hides behind a trivial and silly idea - diversity.

Posted by John Moore at June 23, 2003 11:49 AM

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