In the interest of balance,

In the interest of balance, I present this piece from National Review Online by law professor Douglas Kmiec in praise of the Bush Adminstration’s briefs in the Michigan cases. Kmiec sees the briefs as standing for the proposition that “diversity as a matter of law cannot justify racial discrimination because ample race-neutral means exist to yield diversity.” In my view, though, the briefs go further and endorse the subtler forms of racial discrimination, i.e., using ostensibly race-neutral selection devices designed to favor African-Americans, for the purpose of attaining diversity. I agree with Kmiec that the briefs’ focus on “experiential diversity” includes “racial experience.” Thus, although some conservatives are denying it, the briefs uphold the goal of racial diversity in education. Kmiec thinks this is a good thing. To the extent this goal is used to justify race-conscious selection devices (as opposed to outreach and recruitment of minorites), I disagree.