70°
Partly sunny
THU
 73°
 55°
FRI
 75°
 53°
SAT
 79°
 50°
SUN
 85°
 53°
MON
 85°
 54°

Vote for the Best of Sonoma County SO SONOMA COUNTY finalists: Best singles spot, B&B and more !

WILL: Still a tangled web

  • (WILLIAM BROWN / Tribune Media Services)

“In order to get beyond racism, we must first take account of race.”

— Justice Harry Blackmun, 1978

“The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” — Chief Justice John Roberts, 2007

Blackmun was concurring in the Bakke decision, which created the higher education “diversity” exception to the equal protection principle: Racial preferences in admissions to a public university do not violate the principle of equal protection of the law if they serve the supposedly compelling interest of achieving the educational benefits of a diverse student body.

Twenty-five years later, in a 2003 case upholding the constitutionality of racial preferences in admissions to a state law school, Justice Sandra Day O'Connor declared — citing no data or other reasons — that in 25 more years preferences would be unnecessary. What Blackmun did not anticipate, and O'Connor did not appreciate, is that the diversity rationale for racial preferences appeals to the diversity industry in academia precisely because it makes no reference to compensation for prior injustices. Therefore it does not aim to “get beyond” race.

Tinkering with diversity in a student body could, the court said in Bakke, be regarded as a First Amendment right — the exercise of academic freedom. So, the court's acceptance of a “compelling” government interest in diversity, and of an educational institution's entitlement to deference in defining diversity, was a license for universities to base actions on race forever.

Liberals abhor stereotyping but say minorities necessarily make distinctive — stereotypical? — contributions to viewpoint diversity, benefiting campuses forever. Campus conservatives know how much liberal academics hunger for viewpoint diversity.

As condign punishment for the wrong turn it took in Bakke, the court has been entangled for 35 years in a thicket of preferences that are not remedial and hence are not temporary. Preferences as recompense for past discrimination must eventually become implausible; the diversity rationale for preferences is immortal. And litigation about it will continue longer than forever.

© The Press Democrat |  Terms of Service |  Privacy Policy |  Jobs With Us |  RSS |  Advertising |  Sonoma Media Investments |  Place an Ad
Switch to our Mobile View