"With this faith we will be able to transform the jangling discords of our nation into a beautiful symphony of brotherhood." -- Martin Luther King, Jr., Aug. 23, 1963.

Each year on the anniversary of Martin Luther King Jr.'s birth, America has the opportunity to reflect on our nation's progress towards the realization of his dream. While our country has made great strides in breaking down the barriers which for so long denied equal opportunity to all Americans, we are not yet the beautiful symphony of brotherhood of Dr. King's dream. And, sometimes too frequently, the discords of our nation seem to jangle louder than ever.

One such setback in the continuing effort to tune America into Dr. King's melodic symphony, was the Administration's decision to attack the University of Michigan's efforts to diversify its student body is of great import in the continuing effort to tune America into Dr. King's melodic symphony. Calling the University's policy of admitting those students who "may help achieve that diversity which has the potential to enrich everyone's education and thus make a law school class stronger than the sum of its parts" a system of race-based quotas, the Administration deliberately chose to intervene in a private lawsuit that it would have been better to stay out of.

Neither the University of Michigan nor its law school uses a quota system. The law school, for example, does not set aside or reserve seats for under-represented minority students, but does consider students for whom test scores are a poor index and others with important and diverse backgrounds - Olympic athletes, a Ph.D. in mathematics, or an immigrant with a harrowing personal story. It aims for a critical mass of diversity so that under-represented minority students do not feel isolated or like spokespersons for their race. This is hardly the stuff of quotas.

This Administration, or any other, does not have the time, energy or resources to intervene in every private lawsuit that reaches the Supreme Court. And so it must choose carefully when it intervenes, cognizant of the statement that such an active interest makes and the message it sends to both court and country. This Administration's decision to involve itself in this challenge, on this side, and at this time is a serious setback.

If the Administration was so concerned that the University of Michigan's policies were not sufficiently merit-based, why did it not take issue with the extra "points" awarded to children of alumni? Since many of the nation's institutions of higher learning overtly discriminated against minorities in the past, are not the children of alumni less likely to be reflective of the diversity of America? If giving points to some students to achieve greater diversity is a quota system in violation of the Constitution, how can the awarding of points to the children of a less diverse alumni be upheld?

The government, in its brief, expresses its support for "race-neutral" approaches that grant admissions to the top students at each high school regardless of race or ethnic origin. California, for example, admits the top 4% of each high school's graduates to the University of California, just as Texas admits the top 10% of its students. And approaches like this, which I supported as a California State Senator, have made modest but important improvements in expanding access to higher education for under-represented minorities.

At the very top state institutions, like UCLA, Berkeley and the University of Texas, however, the trend of downward minority enrollment remains persistent and discouraging. Policies that admit a certain percentage of each high school's top graduates have helped at many universities but true equal opportunity remains elusive. As Condoleeza Rice, national security advisor and former provost at Stanford University recently said in response to the Administration's brief, "while race-neutral means are preferable, it is appropriate to use race as one factor among others in achieving a diverse student body."

No one supports quotas. Everyone recognizes the goal of equal opportunity in all of our institutions. And race-neutral policies that achieve greater diversity are preferable. But even race-neutral policies and recruitment efforts designed to achieve greater diversity are, in the end, not race neutral. The University of Michigan policies, carefully drafted to conform with the U.S. Supreme Court's decision in Bakke outlawing quotas but permitting diversity to be considered a "plus," fall clearly on the side of equalizing opportunity and should not have been challenged by the Administration.

During these last few weeks, the trumpets missed their cue, the lead violin hit a sour note, and the conductor dropped his baton. Notwithstanding these setbacks, the dream of a beautiful American orchestra goes on, and I share Dr. King's faith that each year we move inexorably closer to a magnificent opening night.