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Wednesday, August 14, 2002
I was reading a case for my group project on affirmative action. Our project is this: A Latino male, who was in the top two percent of his class, was denied admission to an elite university because of a new affirmative action plan. He would have gotten in under the old plan. We have to argue before the court that we should switch affirmative action plans. Not being a supporter of affirmative action myself, it is particularly diffucult. However, the upside is this: I get to read all sorts of wonderful supreme Court cases on affirmative action. Here are two exercpts from one of them. {Adarand v. Pena (1995)}

1. Justice Scalia in a dissent on a case about affirmative action said this:

"In my view, government can never have a 'compelling interest' in discriminating on the basis of race in order to "make up" for past racial discrimination in the opposite direction racial discrimination in the opposite direction. Individuals who have been wronged by unlawful racial discrimination should be made whole; but under our Constitution there can be no such thing as either a creditor or a debtor race. That concept is alien to the Constitution's focus upon the individual, see Amdt. 14, § 1 ("Nor shall any State . . . deny to any person" the equal protection of the laws), and its rejection of dispositions based on race, see Amdt. 15, § 1 (prohibiting abridgment of the right to vote "on account of race"), or based on blood, see Art. III,§ 3 ("No Attainder of Treason shall work Corruption of Blood"); Art. I, § 9, cl. 8 ("No Title of Nobility shall be granted by the United States"). To pursue the concept of racial entitlement--even for the most admirable and benign of purposes--is to reinforce and preserve for future mischief the way of thinking that produced race slavery, race privilege and race hatred. In the eyes of government, we are just one race here. It is American.

2. And a little from Justice Clarence Thomas:

I write separately, however, to express my disagreement with the premise underlying JUSTICE STEVENS' and JUSTICE GINSBURG'S dissents: that there is a racial paternalism exception to the principle of equal protection. I believe that there is a "moral [and] constitutional equivalence," post, at 243, (STEVENS, J., dissenting), between laws designed to subjugate a race and those that distribute benefits on the basis of race in order to foster some current notion of equality. Government cannot make us equal; it can only recognize, respect, and protect us as equal before the law.

That these programs may have been motivated, in part, by good intentions cannot provide refuge from the principle that under our Constitution, the government may not make distinctions on the basis of race. As far as the Constitution is concerned, it is irrelevant whether a government's racial classifications are drawn by those who wish to oppress a race or by those who have a sincere desire to help those thought to be disadvantaged. There can be no doubt that the paternalism that appears to lie at the heart of this program is at war with the principle of inherent equality that underlies and infuses our Constitution. See Declaration of Independence ("We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness").

These programs not only raise grave constitutional questions, they also undermine the moral basis of the equal protection principle. Purchased at the price of immeasurable human suffering, the equal protection principle reflects our Nation's understanding that such classifications ultimately have a destructive impact on the individual and our society. Unquestionably, "invidious [racial] discrimination is an engine of oppression)". It is also true that "remedial" racial preferences may reflect "a desire to foster equality in society," ibid. But there can be no doubt that racial paternalism and its unintended consequences can be as poisonous and pernicious as any other form of discrimination. So-called "benign" discrimination teaches many that because of chronic and apparently immutable handicaps, minorities cannot compete with them without their patronizing indulgence. Inevitably, such programs engender attitudes of superiority or, alternatively, provoke resentment among those who believe that they have been wronged by the government's use of race. These programs stamp minorities with a badge of inferiority and may cause them to develop dependencies or to adopt an attitude that they are "entitled" to preferences. Indeed, JUSTICE STEVENS once recognized the real harms stemming from seemingly "benign" discrimination. See Fullilove v. Klutznick, 448 U.S. 448, 545, 65 L. Ed. 2d 902, 100 S. Ct. 2758 (1980) (STEVENS, J., dissenting) (noting that " remedial" race legislation "is perceived by many as resting on an assumption that those who are granted this special preference are less qualified in some respect that is identified purely by their race").

In my mind, government-sponsored racial discrimination based on benign prejudice is just as noxious as discrimination inspired by malicious prejudice. * In each instance, it is racial discrimination, plain and simple.

*(footnote in the original): It should be obvious that every racial classification helps, in a narrow sense, some races and hurts others. As to the races benefited, the classification could surely be called "benign." Accordingly, whether a law relying upon racial taxonomy is "benign" or "malign," post, at 275 (GINSBURG, J., dissenting); see also post, at 247 (STEVENS, J., dissenting) (addressing differences between "invidious" and "benign" discrimination), either turns on "'whose ox is gored,'" Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 295, n. 35, 57 L. Ed. 2d 750, 98 S. Ct. 2733 (1978) (Powell, J.) (quoting, A. Bickel, The Morality of Consent 133 (1975)), or on distinctions found only in the eye of the beholder.