I can’t hope to match the peerless coverage of the Bollinger cases by Team Volokh, but a few thoughts:

O’Connor’s majority opinion in Grutter admits that the Court is obligated to find, under Adarand Constructors, which subjects racial categories to strict scrutiny, a “compelling state interest” in affirmative action. It finds this interest in diversity. It nowhere scruples to tell us what diversity actually is. Thomas, less shy, defines “diversity,” tersely and accurately, as “classroom aesthetics.”

The majority opinion also states, “the Law School frequently accepts nonminority applicants with grades and test scores lower than underrepresented minority applicants (and other nonminority applicants) who are rejected.” How frequently, do you suppose? The Court, alas, declines to provide statistics, but I’d wager the rent money that “frequently” is in the single digits for, say, the Law School in any given calendar year.

Sandra Day O’Connor may be the Lewis Powell of her generation, but Thomas, as Volokh points out, is living in a dream world when he declares in his dissent that “I agree with the Court’s holding that racial discrimination in higher education admissions will be illegal in 25 years.” The majority opinion reads, “The Court expects that, 25 years from now, the use of racial preferences will no longer be necessary.” Sure; just as rent-control in New York City was expected to be a temporary wartime measure. That war was World War II.

In a perfect world the University of Michigan would be able to admit anyone they pleased, corporations would be able to hire anyone they pleased, and there would be no “prohibited categories” of discrimination, or indeed, any anti-discrimination laws at all. So I can’t get too upset about affirmative action. The people who get really exercised about it tend to be old ACLU civil-rights lefties, like David Horowitz, or John Rosenberg, who runs the excellent anti-affirmative-action blog Discriminations, or my father. Old lefties retain a touching faith in the government’s ability to make a better society. They believe in integration and public education. They marched for civil rights in the South and sought to eliminate discrimination against blacks not just in law, by taking Jim Crow off the books, but in fact. They really believed in the government’s willingness and ability to wipe out racism, and they feel, with some justice, that they were sold a bill of goods. Communism made the first generation of neo-conservatives: affirmative action made the second generation.

Aaron Haspel | Posted June 24, 2003 @ 7:28 PM | Law

9 Responses to “Four Ways of Looking at Two Cases”

  1. 1 1. jay mckee

    I am always amused when one says "..they marched for civil rights in the south.." as if that is an act of great nobility and courage.
    for the most part they were dope head hippies who were trying to get laid.
    It seems to me that if one were brave and compassionate to the cause of uplifting minorities they would go to the scene of the worst abuses against those minorities. I am of course speaking of Boston, south bronks and other notorious racial hell holes.
    The South has nothing to compare with Harlem or Watts and a Southerner would never scream racial slurs at people he knows of any color.
    the bs left wing propaganda u have swallowed hook line and sinker all these years is just that bs.
    We had jim crow laws in the south 35 years ago. those situations have been corrected apparently by unwashed hippies ( although this was slightly before hippies) marching !! dream on !!
    It took southern whites with a sense of justice ( whose numbers are legion) to correct the problem..
    Your ole man and the rest of his ilk kept the evil alive for 35 extra years thus far. Plus they have given my niece a great job .she is an ethnologist geeziz


  2. 2 2. Aaron Haspel

    Wow. I am often accused of swallowing right-wing propaganda, but left-wing propaganda, that’s new on me. I think the belief of the civil-rights marchers (or "dope-head hippies," your choice) in the government’s ability to eradicate racism was utterly misplaced, and I thought I made that clear. Apparently not.


  3. 3 3. Aaron's father

    "Old ACLU civil-rights lefties like my father?" Yeah, I guess that’s me. I still think it is wrong, and unconstitutional, to deny someone the position he deserves on merit because of his race, even if the race is White or Asian. If that is a "touching faith" in the power of government to eliminate racism, so be it. I think, however, that we were actually making good progress in the early 60′s before the courts turned anti-discrimination on its head and allowed, and then required, racial quotas. I guess that also means that I "was sold a bill of goods." Accurate, perhaps, Aaron, but cruel.


  4. 4 4. Bill Kaplan

    Every latitude would be the equator but for some discriminatory act. Personally, I get more exorcized about the discrimination recently described in the Wall Street Journal. Seems a lower middle-class Korean family scrimped and saved to send their talented son to prep school (either Exeter or Choate) because of the school’s excellent record of placement at the Ivys. After excelling at this prep school, our hero was denied admission to just about every college he applied. None of the colleges (1) wanted to take a student from Choate who needed financial aid, and (2) had an avaiable spot for a preppy with no Ivy ancestry.

    That is why my son, who will be attendig Stanford in another 15 years, will be educated in Hoboken public schools. If he is discriminated against, it won’t be because I put too much money and not enough thought into his education.


  5. 5 5. Eddie Thomas

    Bill, I can’t say that I follow you. How is every latitude a potential equator? And are you saying that you don’t want to put money into your son’s education because you are afraid that discrimination will make the investment a wasted one?


  6. 6 6. Michael Krantz

    Jay, the civil rights marches in the South happened before there were "hippies," and before most white people had heard of "dope." The whites who first participated in those marches (a few of whom were murdered for their trouble, presumably by less-enlightened southerners, whose numbers were also legion) had a huge impact on public opinion, and thus political opinion, and eventually on the laws themselves; they deserve better than your shallow diatribe.


  7. 7 7. jay mckee

    sorry mr krantz for denigrating hippies.
    the civil rights dopers were not hippies cuz hippies hadnt been invented yet
    and killing trespassers isnt murder


  8. 8 8. Bill Kaplan

    Eddie:

    I don’t want to pay for an education only to find that it forecloses opportunities. I presume that the deficiencies of public school education are remediable through supplemental home schooling. Besides, he’s three and independently discovered negative numbers. I don’t think book learning is going to be his problem.

    As for the latitude line, I lifted it from Mark Twain. It is meant to convey the idea that anyone (or in this case, thing) believes he would be the chief but for some cosmic injustice.


  9. 9 9. replacement industrial cartridge filters

    I enjoy reading a post that will make men and women think.
    Also, thank you for allowing me to comment!


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