Confronting affirmative action.

Because the administration argued against the two specific University of Michigan affirmative action plans before the Supreme Court last year, few appreciated at the time how much of the constitutional principle of Equal Protection it was willing to sacrifice. For example, Solicitor General Theodore Olson argued in his brief, "[T]his case requires this Court to break no new ground," in effect conceding that race preferences to achieve diversity, articulated in the Bakke case a generation ago, remained good law. And, said Olson, while not considering race per se, a school might consider such matters as "a history of overcoming disadvantage, geographic origin, socioeconomic status, challenging living or family situation," and a host of other technically race-neutral factors. Got the point (wink, wink)?

The solicitor also pointed with pride to the "percentage plan," adopted by Texas under the Bush governorship. The plan got around a circuit court decision barring race-conscious university admissions by automatically admitting high school students from any public high school graduating in the top 10 percent of their class.

Now comes word, via the New York Times, of widespread dissatisfaction with the Texas percentage plan. The reason is the plan's built-in bias in favor of students' graduating from lowachievement schools and against those in the tougher academic institutions where many superior students fail to make the top 10 percent. As a result, many turned down by the flagship University of Texas take their talents to other states.

This problem was totally predictable at the time the law was passed, as were many others inherent in percentage plans. For one thing, to "cure" the racial imbalance problem, they rely on a foundation of de facto segregated high schools. For another, they have no applicability to graduate schools or to private or out-of-state high schools.

The diversity ...