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January 22, 2003

Diversity: Too Squishy for the Constitution

Volokh vexes me. He's not entertaining. He reminds me of the man who has escaped the torture chamber and has decided to run roughshod over people who aren't making the absolute maximum profit allowable by law. But I concur with him on his point about what the MLK holiday should be, and I am integrating his thinking on the state's compelling interest, or lack thereof in campus diversity.

some days ago, i said:

I think you are left with a debate, not about affirmative action as a remedy for educational deficits, but attached to the fate of race mixing itself. What are the merits of racial integration? Determine that, then come back and see if university is a proper place to practice integration.

and i essentially didn't want to deal with the metaphorical tangle of woods the law makes with regard to strict scrutiny etc. but since i've always been a hardliner for racial integration, i don't want to see diversity be the leading reason for affirmative action. diversity is squishy and always has been. so i agree that the state does not, and should not have a compelling interest in diversity.

at the same time, i like 'critical mass' because i think the quality of campus life is greatly improved by having the strengths of black culture in particular maintained through a vital selection of clubs, organizations and fraternities.

even so, i don't believe the state has a compelling interest in maintaining critical mass or anything like it. i do believe the state has a compelling interest in seeing to it that barriers to opportunity are as limited as possible for the oppressed. i'm not sure that affirmative action in higher ed addresses this for blacks or whites, so i'm not so sure why the supreme court is involved in this matter. it seems to me that the consequences of the racial discriminations of affirmative action taken out of the context of america's racial history could not, under any circumstances, have generated the legal equivalent of passion attending the current controversy. in other words, affirmative action of this sort is not a constitutional issue at all, especially when we are using squishy terms like diversity.

despite the fact that the polity doesn't, i am confident that it could adjudicate such matters adequately in congress. thus i am in agreement with the principle that allowed the state of california (despite the fact that it was clint bolick, the man i love to hate) to settle the question (or not) via statewide referendum. remember, all the u of m is doing is trying to get 'diversity'.

as balkin has promised, although i am not finished, he has presented a reasonable case that the 14th amendment is not colorblind. i am willing to take him at his word as he summarizes in part two what i couldn't parse from part one. essentially he goes us one better by distinguishing civil rights from political rights and social power. to wit:


As I noted previously, most of the Framers of the Fourteenth Amendment believed in a distinction between civil, political and social equality. Civil equality included the the right to make contracts, own property, sue and be sued, give evidence in courts, enjoy freedom of speech and religious liberty. Political equality included the right to vote, hold office, and serve on juries. Social equality meant equal status in society, and concerned social comingling and intermarriage. The Fourteenth Amendment was understood to guarantee blacks civil, but not political or social equality. It was not a guarantee of colorblindness. When people said that the Fourteenth Amendment made all races equal before the law, it meant only that they were civilly equally, not politically or socially. They were equal in their civil rights, that is, their right to make contracts and hold property, sue and be sued in court, but not in any other respect.

this is abundantly clear, and again we are talking about my class 3 racism and social power.

so. given that affirmative action should be a tool for moving forward to a more realistic racial equilibrium, operating below the radar of political equality, what is wrong with its tokenism? nothing, i say. what's wrong is that a political class of whites, operating out of resentment and deception can manage to raise this discomfort to the attention of the supreme court.

here's to hoping they do as little as possible.

Posted by mbowen at January 22, 2003 05:48 PM

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