James Joyner, who I have been quoting an unforgivable amount the last day or so, was among the first to post a comment as regards The U.S. supreme court’s ruling on race discrimination.  Specifically the decision (Text) handed down stated flatly that you cannot use racial discrimination as a cure for racial discrimination.

Well what do you know says I, there’s hope for humanity after all.  Upon reading it, I came quickly to the conclusion that the basis has been laid for reversing both Grutter v. Bollinger and the Bakke case, from 2003. My comment to James was, essentially, what a difference a few years makes. There would appear to be a serious shift occurring within the Supreme Court, and frankly it’s one that I am relieved to see after too many years of one Liberal court after another.
I have a rather simple argument against using racial discrimination to cure racial discrimination; it’s unconstitutional. But more, it’s immoral.  As I said back in the day of Bollinger;

The court’s ruling Grutter v. Bollinger, basically re-affirms the Bakke ruling, which essentially is that race SHOULD be a factor when dealing with admissions. The ruling does go on to state that yes, the policy does, in fact “reaffirm the Law School’s longstanding commitment to one particular type of diversity,” That is to say, it engages in racial bias. Not only that, but racial bias that is subjective, arbitrary, and subject to the bias of those running the program. (I would defy anyone to tell me that this description doesn’t capture the situation in Alabama back in the 50’s…. )

So much for Martin Luther King Jr.’s dream that we will “live in a nation where they will not be judged by the color of their skin but by the content of their character.” This ruiling cuts that idea off at the knees.

So much for Justice John Marshall Harlan’s dissenting opinion in Plessy v. Ferguson saying “The law regards man as man, and takes no account of his surroundings or of his color.”

So much for the Civil rights act of 1964.

And, for that matter, so much for the 14th amendment.

Worse, it appears that the Court’s defacto overturning of these ideals was intended to fix a problem that did not exist… There has never been documented discrimination that has ever surfaced at the University of Michigan as regards admissions. Not one. As a matter of fact, because of the policy that was being defended by the school, Black students were 170 times more likely than whites to be admitted to the Ann Arbor school. The Court however, ignored this point, and claimed
it’s ruling to be acting on the basis of the “compelling interest in obtaining the educational benefits that flow from a diverse student body”

Well, I have two arguments against this as a basis.

*Such an interest is by no means a constitutional argument, but rather, a political argument… and a short-term political argument at that. Even the key vote in this case, Justice Sandra Day O’Connor’s declares, “…we expect that 25 years from now, the use of racial preferences will no longer be necessary.”

One presumes that at such a point, the court will again be asked to rule, and will reverse its decision. For the sake of discussion, and examination, let’s assume the constitution remains fairly well static between now and then, as it has for much of it’s 200 plus years of life. If the need, much less the remedy, is a constitutional issue, how could such measures EVER NOT be needed?  Unless the constitution itself changes, something doesn’t change status from constitutional to
unconstitutional and back again. These race-based initiatives are both illegal and unconstitutional. So to effect this ruling, we must ignore the Constitution.

So, the court figures maybe in 25 years (…. Or, maybe not… Justice Ginsburg reminds us we can’t accept a guarantee of the timing, here…) these measures won’t be needed anymore. Did we simply put the Constitution on “hold” for 25 years or more, until someone decides to start enforcing the Constitution? If so, what’s to guarantee we won’t disregard it again, at some need or other, and for less popular reasons?

Despite even that concern, this nonsense might be a little easier to accept if I thought for one hot second that in 25 years, or 2500 years, for that matter, that given this ruling, and these guidelines, racism would magically disappear altogether. I could even see an argument that it might be worth the sacrifice… if it showed any hope whatever of working as advertised. It doesn’t. This ruling is counter productive to that goal, and will not have that effect, which leads me to my second point:

**There is a major difference between mandating what we’ll call “RACIAL Diversity” and encouraging “TRUE Diversity”. “Racial diversity” simply means we have a lot of different races represented in a given sector of society. “True diversity” means that we have a lot of different styles of thinking, points of view, politics, ideation, etc. regardless of the race of each individual involved.

As such, I submit there is no compelling state or societal interest in mandating Racial Diversity per se’, in a racially neutral society, which we are supposedly striving to be.

Make no mistake from my comments; Diversity of thought… of ideas, or opinions is a fine goal… to be lauded and it constitutes the largest interest of the state. It should be pursued. Apparently that’s the goal being sought by the Court, when it seeks to force diversity by forcing racial diversity. I must give the court credit for keeping that goal in mind.

However, can the pursuit of that goal get tangled when we try to get there through mandated racial diversity? Can it get wrapped up in stereotypical nonsense? It appears so. Consider the comments of Justice Anthony Kennedy, who in his dissent, cited the testimony of a former director of admissions at the UM Law School that when the question came up about whether Cubans should be counted as Hispanics, one professor objected on the grounds that Cubans were Republicans. Do you think Racial Equality was foremost on THAT gent’s mind, or was it pure, liberal-biased, stereotyping politics, base on race alone?

The Court in Bollinger seems to be working under the idea that they’ll get us to True Diversity, through mandating Racial Diversity. This is a flawed, possibly fatal path to the stated goals of True Diversity and our being a racially neutral society. Following this path in fact will reverse much of the good work done already toward the essential goal of making us a less race conscious, and more race-neutral nation, as the Constitution demands. Even the court itself, in Justice O’Conner’s writings, tacitly admits this.

This court-directed pursuit of True Diversity by means of counting the color of each nose going by the admissions gate in our schools, (and one presumes, other sectors of our society, as well) is based on the revolting assumption that a person’s race is in total control of their thought processes, opinions, and their ideas. Not only will I point out that such stereotyping is in fact racism, I say it is racism of a most ugly kind. It is one that should not be tolerated under ANY condition, least of which under the guise of ‘diversity’.

We fought a rather vicious war, about half a century back, against a group of people called Nazis, led by an idiot with a weird mustache who operated under that same racist idea, that race is at the center of one’s being, that ones thoughts, actions and ideas are all dependent on their race, and it’s purity. Re-applied here in the US, as the court seems to be allowing, here, this idea will at least lead down the road of racial stereotyping and increased racial consciousness.

The Law school ruling is particularly troubling in it’s inconsistency with the writings this week of the ruling’s principle author, Justice Sandra Day O’Connor, who wrote on Thursday in Georgia vs. Ashcroft, that ” the court should be working to “…encourage the transition to a society where race no longer matters: a society where integration and color-blindness are not just qualities to be proud of, but are simple facts of life.”

Nice words, and commendable, and quite correct. Thing is, that stated goal is 180 degrees out of phase with the Bollinger ruling. Possibly it’s more accurate to suggest that the Bollinger ruling was off kilter with everything else.

One more point not too many people like talking about was brought forward by Justice Thomas, who cited Morehouse College, where lass than 1% of the student body was white, or Hispanic. “Do we have any sense”, Thomas argues, “that the traditionally black colleges will now start admitting more whites for the sake of diversity? ”

Thomas of course is correct. How, if at all, will this ruling change the racial balance situations in those places? Isn’t diversity equally valuable in those places? Rather makes one wonder about the value some place on this mandate of racial diversity.

Do not mistake my comments. I do not question the members of the court on their desire to get our society to a situation where racism doesn’t exist. Nor do I suggest that this is not a valid and worthy, and indeed, a vital goal. I do question, however using racism as a tool to fight racism, on logical, moral, AND constitutional grounds. I say again: Diversity of race for it’s own sake is racism, plain and simple.

Thurgood Marshall warned us about such things in Brown:

“Distinctions by race are so evil, so arbitrary and invidious that a state, bound to defend the equal protection of the laws must not invoke them in any public sphere.”

It angers me that this court has ignored that admonition. What angers me more is that also they ignored the advise of someone closer to the hearts of most Americans than Marshall… Namely, Frederick Douglass, a fellow Rochesterian, who addressed this point as well as any I can think of, even though the haze that 150 years of language difference can and does bring:

“What I ask for the Negro, is not benevolence, not pity, not sympathy, but simply justice . . .. All I ask is, give him a chance to stand on his own legs! Let him alone!….. ..our interference is doing him positive injury.”

The court has once again, disregarded these pleas. All that’s left behind is more confusion, and more of the legal racism we’ve been trying to rid ourselves from since the middle 1800’s..

The court took these Michigan cases, supposedly to end the argument about the constitutionality of racial bias being applied to try and solve racial bias. (Irony abounds)

The answer to this issue was obvious, and the court missed it, trying to find shades of grey where they simply do not exist. Racism is, ironically, a black and white issue, as are most things, in the end. It’s either there, or it’s not. It’s either legal, or it’s not. We either support racism in our system of laws, or we don’t. A clear-cut ruling, reaffirming the dreams of Dr King, the pleas from Mr. Douglass, the advise of Justice Marshall, Justice Harlan, and the law of the land in the form of the 14th amendment was what was needed. Instead, what we got flew in the face of all of that wisdom.

That was back in 03.

So, needless to say, I was glad to see the ruling of today.


However, I was a little concerned to see the separate opinion issued by Justice Kennedy, who disagreed with the majorities reasoning, more or less stated above. Apparently, word hasn’t gotten to him yet, that we are supposed to be a race neutral neutral country.  According to Kennedy, race may be used as a criteria if diversity is the goal.  What about “race neutral” does Justice Kennedy not understand? what about “not by the color of their skin but by the content of their character” does Mr Justice Kennedy not understand?

Am I to conclude that Mr. Justice Kennedy is a racist?


If so,it must be said in fairness, that Kennedy is not alone in this. After all, several people all along the incidental chain between here and there, had to agree with him, for the case to get all the way to the Supreme Court.  Apparently we have work to do, yet, in that regard. Justice Kennedy actually reading the constitutional prohibitions against using racial preferences would be a start.  This whole thing is going to be an educational process, consisting of many years, I fear. On reading the opinion of Mr. Kennedy today , I must say that educational process has to start with some of the inhabitants of the court.

One other observation on this ruling…

I think in coming nearly full circle on the issue of being able to use racial discrimination as a cure for racial discrimination the high court has proved its own fallibility.  Because if you think about it, these rulings and these philosophies that the rulings are based on are complete opposites… such rulings from opposite ends of the spectrum cannot possibly be both constitutional.  It brings one back to the specter of trying to get the court to reverse the Dred Scott decision. In reversing that abominable decision, the court never got around to admitting it was wrong.  They simply cited some sociological mumbo jumbo, Zip, Bam, all better. So perhaps before any of the rest of it gets fixed, the first thing we have to do is to get the court to admit that it is in fact a fallible institution.  It is comprised of human beings, after all.  One does not assigned to the heights of God-hood once one dons the black robe.

Of course, there’s Hell to pay to get that lesson across.

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