A second reading of Sandra Day O’Connor’s opinion suggests that she (though probably not the four Justices who gleefully joined her) may have been troubled momentarily by the racialist grounding of her ruling. O’Connor seeks to head off this criticism, as did the University:
“The Law School does not premise its need for critical mass on ‘any belief that minority students always (or even consistently) express some characteristic minority view point on any issue.’ [citation to law school’s brief omitted] To the contrary, diminishing the force of such stereotyping is both a crucial part of the Law School’s mission, and one that it cannot accomplish with only token numbers of minority students. Just as growing up in a particular region or having particular professional experiences is likely to affect an individual’s views, so too is one’s own, unique experience of being a racial minority. . . .”
In my view, this preemptive strike does nothing to diminish the racialist nature of the decision, but does further undermine the plausibility of the university’s pragmatic case for preferences, and thus of the Court’s claim that it is applying strict scrutiny to racial classifications. O’Connor may reject the theory that all or nearly all minorities hold the same views on any given issue. But she embraces the theory that, where minority representation is in the neighborhood of 14 percent, enough minority students will express a unique minority viewpoint so that those who do won’t feel isolated. That’s a racialist justification for race-based preferences.
Now consider O’Connor’s claim that the very fact that some black students won’t express the black view justifies the need for minority representation in the neighborhood of 14 percent. First, note the offensiveness of this approach and its capacity for mischief. It means, among other things, that if blacks start to feel less victimized by the society that grants them preferences, colleges may decide they need to increase the quota (sorry, the critical mass number) so that those who continue to hold the unique/authentic black point of view (resentment of whitey) won’t feel lonely on campus. Alternatively, if black students as a group become more alienated, colleges may feel the need to increase the quota to ensure a “meaningful” presence of those who are not alienated, so as to “diminsih the force of stereotyping.”
Note too what a house of cards the university’s case has become. The educators turned social engineers are now telling us (a) that there is a unique black perspective (b) that significantly enriches the educational environment for others but (c) will not be asserted, at least not comfortably, without a particular presence of other (like-minded?) black students and (d) is not held by all or nearly all black students, thus requiring (e) a “critical mass” of black representation that (f) the educators in their wisdom have correctly divined. And the Supreme Court, purporting to apply strict scrutiny, has accepted all of these premises on, in most cases, little more than the university’s say-so.
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