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SCOTUS' Tangled Web

by Jerry Bader

An excellent George Will Column on yesterday's debacle of a ruling on affirmative action. The court's repeated attempts to "fix" affirmative action without realizing the only way to do that is to get rid of it remind's me of a scene from the movie "A Beautiful Mind." After denying his mental illness for a long period of time, Russell Crowe's character believes he can think his way out of it; after all, he is a genius.

The mental health professional treating him admonishes him that mental illness is not a puzzle to be solved. It can't be dealt with internally, it needs to be cured. SCOTUS is taking the same approach to affirmative action; it refuses to accept that the problem isn't with how universities apply affirmative action, the problem is with the concept itself.

Three times now, first in 1978, then in 2003 and yesterday, the court subscribes to the notion that if universities would simply stick the narrow mission of affirmative action and not allow race to become an oversized factor in admissions, all would be well. This notion carries with it all the futility of the lead character in "A Beautiful Mind." Universities have shown time and again that diversity has become the be all, end all. 

A diversity obsessed institution will never believe its use of race as a factor in admissions is larger than it should be because diversity is more important than anything else. And Will makes an outstanding point here; the fact that affirmative action is by its nature designed to be punitive to the majority race for past transgressions has been expunged from this debate. That makes racial discrimination not only guilt-free, it makes it noble. It appears no court wants to be the court to end affirmative action. Will is right; this quagmire will continue until some future court is up to the task.