ADMINISTRIVIA IS A POTENT TOOL for destroying policies one dislikes. The Left has used cumbersome procedures as a pillow to suffocate the death penalty despite its strong public support. It should be even easier to use administrivia to wreck policies that are publicly unpopular, and have been imposed by runaway courts.

Affirmative action is a good example. O'Connor's Grutter majority opinion is typical O'Connor:a vague, complicated, wishy- washy, ruling that lays out a number of different factors that will affect whether a law is okay or not. Rehnquist makes reference to this in his majority opinion in Gratz, the Michigan undergraduate affirmative action case:

Respondents contend that "the volume of applications and the presentation of applicant information make it impractical for [LSA] to use the . . . admissions system" upheld by the Court today in Grutter. Brief for Respondents 6, n. 8. But the fact that the implementation of a program capable of providing individualized consideration might present administrative challenges does not render constitutional an otherwise problematic system. See J. A. Croson Co., 488 U.S., at 508 (citing Frontiero v. Richardson, 411 U.S. 677, 690 (1973) (plurality opinion of Brennan, J.) (rejecting "'administrative convenience'" as a determinant of constitutionality in the face of a suspect classification)).
O'Connor's Grutter opinion lays out a series of requirements for an affirmative action policy that if taken seriously would kill all such programs (of course, the Court did not take it seriously in Grutter, or they would have remanded to a trial court). Here is what I would press for any affirmative action program:
  1. Does it look at every admission individually, rather than lumping together all black applications in a pile or adding points to scores automatically?
  2. Has the institution demonstrated, formally, that racial discrimination serves an education purpose, helping students not in the favored group?
  3. Does the institution have a formal procedure for reviewing every few years whether racial discrimination is still necessary?
  4. Can the institution show that it does not use quotas-- that is, that the number of special admissions can vary from year to year?
Probably there are other cumbersome requirements that could be added. A trial judge could strike down (or uphold) programs pretty much according to his fancy under Grutter .

Postscript: I see that Peter Kirsanow at National Review has the same idea. I think he probably adds too much to what O'Connor requires (by her opinion, it wouldn't matter if all the specially admitted students flunk out--- their admission is not supposed to be for their benefit, but for the other students'), but he has at least one good addition to my list: the college must not segregate the minorities in special majors, dorms, etc., or we can conclude the purpose is not to enhance the education of the other students.

[ http://php.indiana.edu/~erasmuse/w/03.06.30a.htm ]

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