A 28th Amendment?

Senator Clinton got a rousing ovation at a congregation in the Bronx when she announced that she would be joining Senators Daschle and Kennedy in a friend-of-the-court brief on the Michigan affirmative action case. It's less clear that she'll gain an ovation in the Supreme Court. Our reading of the briefs gives us the sense that this is coming down to a 14th Amendment case. The 14th is the amendment that guarantees all American citizens "equal protection of the laws" and makes it unconstitutional for either the state or federal governments to treat citizens differently on the basis of race. Mrs. Clinton and other defenders of the University of Michigan, which provides wildly disparate treatment to admissions candidates based on the color of their skin, are going to have to do some crafty brief-writing to gain the ground they seek.

Further, it's not just the 14th Amendment, but also the controlling Supreme Court case, Bakke. The Bush administration's brief in the Michigan case, though some conservatives have criticized it, certainly appears to us to do a masterful job of laying out the issue. While the administration does not directly take on the proposition that diversity is in and of itself a compelling state interest, it demonstrates that, even granting the importance of diversity, the University of Michigan admissions system is unconstitutional. Even when the government is pursing a "compelling interest," the government cannot take race into account unless it does so in a "narrowly tailored way" and unless there are no "race-neutral alternatives." And as the Bush brief spends much time laying out, there are virtually always race-neutral alternatives. The brief makes much of the plans in Texas, Florida, and California that guarantee spots in state universities to those at the top of their high school classes. Also, it lays out other criteria — such as "history of overcoming disadvantage," "geographic origin," "socioeconomic status," and "challenging living or family situations" — that could substitute for race.

Given all of this, it seems unlikely that the current Supreme Court could be persuaded to ignore the Constitution and Bakke in the interest of upholding the University of Michigan's policies. If Mrs. Clinton wishes to promote diversity at colleges and universities, she could work on improving the education of all children, particularly minorities stuck in the worst government schools. One reform just cleared by the Supreme Court is school vouchers. This at a time when another avenue, the charter school movement, is coming into its own. If Mrs. Clinton wants an easy road through the constitutional issues, however — as she seems to, in signing on to such a brief — she could consider offering a Constitutional amendment of her own. Drawing inspiration from the 21st amendment, she might try: "The fourteenth article of amendment to the Constitution of the United States is hereby repealed."