A reader writes:
I am writing to offer some thoughts in response to your post that you find it remarkable that the academic elite would nonchalantly advertise an illegal program.What I’ve found is that those who administer and/or support such programs will go to extraordinary lengths to argue that programs that are clearly illegal are in fact legal. In particular, even though the USSC has never held that redressing general societal discrimination or increasing minority representation in a particular field are adequate constitutional justifications for discriminatory state action, and has frequently held to the contrary, these justifications are still routinely trotted out to support the legality of racial preference programs. This is not the sort of battle, however, that the judicial branch is likely to win on its own. L’havdil [yiddish/hebrew for, drawing an important moral distinction while still using as an analogy–literally, to separate] virtually nothing happened with regard to school desgregation after Brown until Congress passed enabling legislation in the 1964 Civil Rights Act.I would actually find it remarkable if they didn’t. For example, here in Georgia we have a state law that provides for an extra income tax deduction of 10% of any amounts paid to minority subcontractors. The law seems clearly illegal and unconstitutional, but it is widely known (it’s described on our tax return forms) and remains unchallenged. When I attended law school at the University of Florida, the law school proudly advertised the state-funded Virgil Hawkins Minority Fellowship program, which was available solely to African American law students. In fact, I was told by people I trust and who were in a position to know that the fellowship was provided to all African American law students as a matter of course, and had the effect of providing a free legal education to all such students; I suspect the program is still in place. And in here in Atlanta, the city and Fulton County are frequently being sued over their blatantly illegal set-aside programs. To date the city and county have lost every suit (I think it’s 12 or 13 in a row). The city and county file every appeal possible, and, when defeat is certain, they simply tweak the program, rename it and reinstitute it. The revamped program seldom differs much from the version that was struck down.
The behavior described in each of these examples, and in the example cited in your post, makes perfect sense. In each case the administrators promoting the program in question believe that they are taking a principled stand on behalf of a worthy cause, and that the laws proscribing their conduct are unjust. And, equally important, there is simply no downside to taking such a stand. If the arrangements are challenged, the administrators will spend vast sums of other people’s money defending the programs. When the programs are ultimately held to be illegal, there will be no personal liability or loss of employment for the persons responsible — I am sure the Gratz administrators have not suffered professionally. Rather, they will in all likelihood be lionized by their peers, and portrayed sympathetically in the press.
I suspect no court will ever meaningfully sanction this conduct, and so I fully expect it to continue.
UPDATE: A reader, noting that Atlanta is a majority African American city, wonders whether the cases referred to above reflect a “principled stance” in favor of redressing past wrongs, or pure power politics in favor of the majority, noting other Atlanta examples.
Another reader points to a new USDA scholarship, that is available only to students attending colleges with a high percentage of students of Asian descent. This scholarship is clearly intended to benefit Asians, and the USDA has similar scholarships to benefit Hispanics, African Americans, and Latinos, though none are explicitly limited to members of those groups. These scholarships seems unconstitutional under current law to me. It would clearly be illegal to have a scholarship intended for students who attend institutions that are historically disproportionately white, and the Court has held that, in general, equal protection standards are the same for white and minorities. The exception, thus far, is for diversity programs in education, where universities have a countervailing First Amendment academic freedom interest in creating diversity for educational purposes. The USDA programs do not fit this mold.
Another reader notes that the federal government has lots of fellowships available only to members of racial minority groups, so it’s no wonder that university and state and local officials feel no compunctions about administering similar programs. If the federal government does it, it must be legal, right?
This reader (from Texas) adds: “Federal agencies send out notices when there’s a change in whether or not we can buy office supplies on our grants. If there was a panic about the legality of these programs after the
Michigan decision, I completely missed it…and I didn’t miss the
reaction to Hopwood [which outlawed racial preferences in the 5th Circuit, including Texas].” Hopwood was a bright-line case forbidding preferences, whereas the Court’s split decision in the affirmative action cases allows rather preferences, amounting even to implicit quotas, for diversity purposes in education, but bans, as I read them: (1) explicit quotas; (2) programs justified not for diversity purposes, but to redress past societal discrimination, increase the representation of minorities in a particular field, or increase the likelihood that certain population groups will be served by professionals graduating from a certain program; (3) explicit point systems that grant all members of certain underrepresented minorities the same number of bonus points on an admissions grid; and (4) if (1) and (3), then implicitly programs that are open to minorities only.
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