Monday, June 23, 2003

Constitutional Twaddle

For aught it matters: I personally believe in the use of racial and ethnic preferences to overcome the effects of past societal discrimination and I personally think that the use of racial preferences for this purpose should not be said to run afoul of the Equal Protection Clause. Having voiced this opinion, I feel compelled to add that the Court's view (voiced today in Grutter v. Bollinger) that the presence of a "critical mass" of African-American students at an institution of higher education is essential to the realization of the benefits of "diversity" is twaddle. Justice Rehnquist's rejoinder is unanswerable:

If the Law School is admitting between 91 and 108 African-Americans in order to achieve “critical mass,” thereby preventing African-American students from feeling “isolated or like spokespersons for their race,” one would think that a number of the same order of magnitude would be necessary to accomplish the same purpose for Hispanics and Native Americans. Similarly, even if all of the Native American applicants admitted in a given year matriculate, which the record demonstrates is not at all the case,* how can this possibly constitute a “critical mass” of Native Americans in a class of over 350 students? In order for this pattern of admission to be consistent with the Law School’s explanation of “critical mass,” one would have to believe that the objectives of “critical mass” offered by respondents are achieved with only half the number of Hispanics and one-sixth the number of Native Americans as compared to African-Americans.
The only plausible justification for preferential treatment of African-Americans, Native Americans, and other such groups is the judgment that such groups have been improperly disadvantaged and that steps to remedy such disadvantages are warranted. The constitutionality of such remedial steps should be directly confronted and resolved. Hypocrisy about the nature of the problem presented by racial and ethnic preferences will cause justifiable resentment. The public is not stupid: it is likely to think that the Court takes it for a fool.
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