Quota U - Ann Arbor shows its colors.

The entire academy is depending on the University of Michigan. In response to lawsuits challenging its undergraduate and law-school admissions policies-cases that may well be appealed all the way to the U.S. Supreme Court-the university has undertaken a massive legal, sociological, and public-relations effort to justify racial preferences. Michigan's president, Lee Bollinger, is devoted full time to the effort, becoming one of the country's foremost spokesmen in behalf of racial preferences. So far, the university has won over at least one judge, who ruled mostly in its favor in the Gratz case in December. But that opinion, and the university's arguments that influenced it, serve only to demonstrate the constitutional and intellectual tenuousness of affirmative action, a policy in support of which Michigan-and most other universities and colleges-will say or do practically anything.

Any discussion of affirmative action should begin with the Fourteenth Amendment: "No State shall . . . deny to any person within its jurisdiction the equal protection of the laws." As the Supreme Court once explained, the "central mandate" of the amendment "is racial neutrality in governmental decision-making." In the 1995 Adarand case, the Court sharpened its jurisprudence, holding that any racial classification by a governmental actor must meet "strict scrutiny." Such classifications are constitutional only if they are "narrowly tailored measures" that further "compelling governmental interests." This test throws into radical doubt the legal basis of racial- preference policies at public universities.

The Washington-based Center for Individual Rights has challenged preferences, first in Texas-where it won the landmark Hopwood case (1996)-and now in Michigan, where it is appealing the Gratz decision. The most important legal backdrop is the Court's 1978 Bakke decision. In that case, involving a quota at the medical school of the University of California-Davis, the Court issued a splintered ruling that makes December's Bush v. Gore opinion look clean by comparison. The school had set aside 16 of its 100 slots for minorities, and ran an entirely separate admissions operation for minority applicants. A majority of the Court ruled the Davis system unconstitutional, but a separate majority held that race could, in appropriate circumstances, be a factor in admissions. A very nimble Justice Lewis Powell managed to figure in both majorities. Powell argued that seeking to attain a specific percentage of minorities for its own sake was unlawful, but that diversity as a way to improve education was a "constitutionally permissible goal," because learning "is widely believed to be promoted by a diverse student body."

The University of Michigan is holding on to Powell's robes with a white-knuckled desperation, staking its defense entirely on the late justice's diversity rationale (even though the authority of Powell's opinion is in doubt, since it was not endorsed by any other Supreme Court justice, let alone by a majority). Michigan certainly has a lot to defend. From 1995 to 1998, the university employed a "grid" system that grouped applicants into "cells" according to their GPAs, test scores-and race. Minorities and non-minorities were on separate, but not equal, grids. In 1995, for instance, the system called for admission of minority students with GPAs at or above 2.6 and ACT/SAT scores at or above 18 and 820, respectively. The separate standard for non-minority applicants rejected those with GPAs below 3.2 and ACT/SAT scores below 23 and 950. In addition, the school held open a certain number of seats exclusively for minority applicants during its rolling admissions process.

Judge Patrick Duggan, in his ruling in the Gratz case, found this process unconstitutional: The "effect of [Michigan's] differing standards was to systematically exclude a certain group of non-minority applicants from participating in the admissions process based solely on account of their race." But in 1998 the school had shifted from the grid to a "point" system.

Under this scheme, an applicant needs 90-100 points to be admitted, and race can get you about 1/5 of the way there. All black and Hispanic applicants get an automatic 20 points. (Asian applicants, who may be minorities, but are not "underrepresented" minorities, get zip.) An excellent essay is worth 3 points. Some outstanding personal achievement is worth up to 5 points. A perfect SAT is worth 12 points. University officials admit that they had a statistician run the numbers prior to the creation of the new system to ensure that it would achieve the same result as the unconstitutional grid system.

Enter once again Judge Duggan. In such matters, he writes in Gratz, there is "often a thin line that divides the permissible from the impermissible." In the Michigan case, the line is so thin that it is not even visible to the university itself. The university writes in a brief, "[W]hile the mechanics of the admissions process have varied, the policies underlying the guidelines have not changed. Specifically, the University's use of race as a factor in admissions has been consistent throughout." This is the most honest part of the university's argument; and it is not in dispute-the plaintiffs in the Gratz case agree with the university's analysis. Nonetheless, Duggan discovered in his opinion a thin-to-the-point-of-disappearing line that makes the university's new system legal. His opinion is built on the gossamer wings of distinctions without a difference.