I haven’t read the briefs

I haven’t read the briefs either, Rocket Man, and probably shouldn’t comment until I have. However, one of my reservations about your analysis is that actions challenging affirmative action style discrimination don’t come before the Supreme Court very often. If the Court follows what I understand to be the government’s approach and strikes down the Michigan plans without strongly signaling that the diversity rationale can’t ever support racial preferences by public universities, it will probably be years (and quite possibly decades) before the Supreme Court rules on the issue again. And who knows what the composition of the Court will be at that time. In the meantime, district courts and courts of appeals will do whatever they want, which often will mean upholding the new, marginally more subtle discrimination practiced by colleges and universities. If, on the other hand, the Supreme Court takes the bull by the horns, the lower courts will, by and large, enforce that mandate and “massive resistance” by colleges and universities will be largely unsuccessful. That is one of the reasons why I am disappointed that the Bush Administration apparently was unable to take the correct and popular position on this one.

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