TBy Kimani Jefferson he Supreme Court’s decisions in Gratz v. Bollinger and Gruter v. Bollinger – relating respectively to affirmative action policies of undergraduate and Law School admissions at the University of Michigan – has had the country abuzz for the past week. And while either side of the affirmative action argument may lay claim to victory, I believe the country has been dealt a significant defeat.

The rulings, other than striking down the University of Michigan’s undergraduate admissions policy, left much to be desired. The only thing clear when the two cases are viewed side by side is the incoherence of the rulings, particularly when one reads Justice Sandra Day O’Connor’s opinions. She apparently desired to be everything to all people; consequentially, the court failed to produce a concise decision, leaving the country still in the abyss of the affirmative action debate, and in the dark regarding the Constitution.

Just to be clear, my opinion on affirmative action is unequivocal: procedurally, whether it is a “plus” or an outright absurdity such as a point system, any affirmative action program that uses race as a major factor violates the equal protection clause of the 14th Amendment to the Constitution and ought not be protected. For those of you who haven’t deigned to peruse the Constitution, it reads, “(N)or shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Now you may or may not agree with affirmative action, but that’s not the question. The question is whether or not affirmative action complies with the Constitution of the United States. The answer to this question, uncomfortable though it may be for affirmative action supporters, is no. Furthermore, after referencing the Constitution, it is clear how the document is to be changed.

What the Court did instead was what is called judicial activism, and they did a poor job of it. The main party to the failure was Justice O’Connor, who seemed incapable of consistency. In one instance, the Gratz ruling, she signs onto the majority opinion written by Chief Justice William Rehnquist, who, citing Northeastern Florida Chapter, Associated Gen. Contractors of America v. Jacksonville, writes, “the injury ‘in fact’ is the inability to compete on equal footing in the bidding process, not the loss of contract.” In other words, the injury to Gratz wasn’t non-admission, but the inability to compete with individuals granted 20 points based on the color of their skin.

Then, in an amazing 180 degree shift in reason, O’Connor writes in the Grutter majority opinion, “The Court endorses Justice Lewis Powell’s view that student body diversity is a compelling state interest that can justify using race in university admissions.” To state it plainly, race may be used as a “plus” factor in admitting applicants. Now does anyone else see a contradiction in O’Connor’s logic? Is not a “plus” factor in admitting an applicant the same as granting points, just differing in degree?

Supporters of the Grutter decision will most likely say that the Law School admissions policy was “narrowly tailored,” or in Powell’s words from Bakke (v. the Regents of the University of California), the policy must be “flexible enough to consider all pertinent elements of diversity in light of the particular qualifications of each applicant, and to place them on the same footing for consideration, although not necessarily according them the same weight.” Not necessarily according them the same weight? Sounds to me like another one of those, “Well, it depends on what the definition of ‘is’ is.”

In the end, we are still as confused on the subject of affirmative action with respect to the law as we were before, particularly with that “equal protection” thing. Many believe, including Justice Antonin Scalia, that the inconsistency of the decisions will only lead to more lawsuits. “(T)oday’s Grutter-Gratz split double header seems perversely designed to prolong the controversy and the litigation.” Perverse, indeed; this fight is far from over.

Rest assured that as justices retire and others are appointed, this issue will come ever closer to a climax. It will be interesting to see. I, for one, am intrigued with the possibility of that short burst of words, “Nor to deny any person,” coming to fruition for all, equally under the law.

Kimani Jefferson lives in Minneapolis and is a member of the Project 21 Advisory Council of the National Center for Public Policy Research. He can be reached at [email protected]