Affirmative action today…

The principle of equal treatment without regard to race is one that is close to my heart. Accordingly, one of my favorite books on a legal subject is Andrew Kull’s The Color-Blind Constitution. The book is full of surprises. For example, Kull devotes two chapters to the separate but equal doctrine approved by the Supreme Court in the 1896 case of Plessy v. Ferguson. The case represents the bygone era of Jim Crow, yet at the outset of his discussion of the case Professor Kull makes this astounding observation: “The majority opinion in Plessy makes a comfortable target, and it is routinely vilified. But in its broad holding, as opposed to its particular application, Plessy has never been overruled, even by implication. On the contrary, it announced what has remained ever since the stated view of a majority of the Supreme Court as to the constitutionality of laws that classify by race.”

The principle of equal treatment was adopted as the law of the land in the great civil rights legislation of 1964 and 1965, or so we foolishly thought at the time. It may even have been the law for a minute or two. Then the federal government began building the whole edifice of affirmative action and racial preferences that we live with today and that has been addressed by the Supreme Court in a number of important cases. Certainly insofar as higher education is concerned, the affirmative action regime and the treatment of students based on the color of their skin are entrenched more deeply than ever under the shibboleth of “diversity.”

The lawsuit brought by Asian-American students handicapped by Harvard’s practice of affirmative action brings the practice of affirmative action back into the news. There is a shame attached to the practice involving offenses against both its victims and its beneficiaries. These offenses must be covered in lies and mystification such as Harvard President Drew Gilpin Faust brings to the defense.

The Harvard case has elicited two commentaries that contribute to our understanding of what it’s all about. Wesley Yang’s New York Times column states the victims’ side of the offense while John McWhorter’s American Interest essay states the beneficiaries’ side. McWhorter’s essay is the most biting of its kind that I have ever seen.

These compelling contributions challenge a deeply embedded practice that belies first principles. One of the lessons of Kull’s great book is that the Supreme Court wants to retain for the judiciary the discretion and authority to approve varieties of racial discrimination. The ideal of the color-blind Constitution remains permanently on the horizon. To paraphrase George Wallace, affirmative action today, affirmative action tomorrow, affirmative action forever.

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