Jun 242003

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.