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Civil Liberties Strangely Defined

By Nat Hentoff

Saturday, June 27, 1998; Page A15

The American Civil Liberties Union has asked to intervene in an anti-discrimination case in Seattle. The ACLU is supporting the University of Washington Law School, which has discriminated against a white applicant, Kuturia Smith. This kind of affirmative action can turn civil liberties upside down.

Smith, through the Center for Individual Rights, is suing because she was denied admission to the law school despite very high grade point averages and LSAT scores. She was rejected for only one reason -- her color. The ACLU sees nothing wrong with that.

As I wrote in my May 9 column, I demonstrated during a lecture before the dean and many of the faculty of that law school that race was her only stigma. I pointed out that she had overcome poverty and worked at low-wage jobs throughout her education.

I asked them what would have happened if she had not revealed her race on her application. If, considering her first name, she had been taken for black, would she -- given her academic record and character -- been admitted? The dean said she would have been.

Yet the ACLU, in defending the law school in Smith's anti-discrimination suit, is saying that only the right color would determine who gets in for diversification purposes. Here is the oldest and most visible civil liberties organization telling this young woman that who she is beneath her skin and what she has accomplished do not matter.

In its court papers in this case, the law school notes that its admissions policy has been adjusted somewhat over time. One factor was "a highly publicized case in which the Law School denied -- but the Harvard Law School accepted -- the application of a white welfare mother with good but not outstanding academic qualifications."

"Our admissions committee concluded that the applicant was not a member of a racial or ethnic group subject to state-sanctioned discrimination and, therefore, she could not be considered as contributing significantly to the diversity of the class," the University of Washington Law School concluded.

I wonder how many other members of that class were welfare mothers. Surely that applicant could have contributed some diversity of experience and ideas, even if she was the wrong color.

Despite that embarrassing incident, the degree to which the law school continues to focus on "diversity" -- thereby shutting out Kuturia Smith, among others -- is indicated by the University of Washington's policy, followed by the law school, that "affirmative action will be taken to increase substantially the number of minority group members . . . in educational programs in which they have been traditionally underrepresented."

Having been rejected at the University of Washington Law School, Smith went to the less prestigious and more expensive law school at Seattle University. She took out student loans and kept on working at clerical jobs between semesters.

When she first came to the Seattle University Law School, she says, "People were staring at me. And students, some of them black, hung up derogatory signs all over the place with photocopies of newspaper stories about me and my lawsuit."

On graduating, Smith says she lost several jobs with Seattle law firms because she had had the temerity to file the lawsuit against exclusionary "diversity." She now is working for the National Association of Securities Dealers.

"I lost a lot of money because of what happened," she tells me. "But I was right to do this. If they don't think the scores are accurate predictors, then throw them out for everybody. Let's look at each individual."

I asked her if she felt differently about gender-based preferences for admission. "I feel the same about gender," she said. "It would be insulting to me to say I can't compete because my plumbing is different."

Thinking back, she finds it interesting that the black students who put up signs attacking her never spoke to her directly. "There was one black person whom I overheard speaking to a secretary. He was very angry at me. I recognized his voice. Yet he and I often had friendly conversations in the hallways. But he did not know my name then. Once he did connect my name to the person he actually knew, there was no anger. He even said, 'I support you.'

"I just want to be treated like everybody else," says Smith. But in these cases, the ACLU has lost sight of individuals. The ACLU has reinterpreted "equal protection of the laws" to exclude persons because of their color. This is Orwellian civil liberties.

© Copyright 1998 The Washington Post Company

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