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The Supreme Court's momentous split decision on the Michigan affirmative action case Cruller v. Bollinger read into our Constitution a new and potentially powerful justification for race-based quotas. Someday we may realize that Justice O'Connor's decision brief opened a door better left shut.
While supposedly striking down strict formulas for achieving affirmative action, the Grutter decision serves to make numerical targets for race-based enrollment newly defensible. In adopting the doctrine that diversity requires schools to attract a "critical mass" of minority students, the decision took a concept that had enjoyed little legal standing and stamped it with a Constitutional imprimatur. Schools, colleges, and universities can now argue that efforts to attract "enough" minority students do not reflect a race-based agenda but an adherence to the Court's ratification of the concept of "meaningful numbers."
O'Connor's decision argued that a "sufficient number" of underrepresented minorities are needed on campuses so that minority students don't feel isolated, and so that other students will have ample cross-racial experiences. Thus Michigan is empowered to seek "enough minority students to provide meaningful ...