Beyond Bakke

I have a review essay, “Beyond Bakke,” in the just-published Spring 2023 issue of the National Association of Scholars journal, Academic Questions. It is available online here.

I argued more forcefully in an older draft that the Court could reach an equitable result (in the now older sense of fair and just) in the pending Harvard and UNC affirmative action cases by “simply” relying on Title VI of the Civil Rights Act of 1964, but there will be both real and poetic justice if instead it goes beyond Title VI and revives the older liberal version of the 14th Amendment — that it embodies the principle of colorblind equality — discarded by today’s progressives.

Poetic, because …

Unlikely as it might appear in 2023, today’s defenders of affirmative action stand on the shoulders of dead racists. Justice John Marshall Harlan was wrong, they assert, to argue in Plessy that “our Constitution is colorblind.” They applaud, as the Harvard brief does, the success of the racists and “moderates” in the Thirty-ninth Congress who rejected colorblind language in the Fourteenth Amendment proposed by former abolitionists Charles Sumner, Thaddeus Stevens, and the radicals, “choosing instead to guarantee ‘equal protection’ rather than prohibit all distinctions based on race.” And what of more recent iconic liberals such as Hubert Humphrey, who did succeed in embedding colorblindness into Title VI and the rest of the 1964 Civil Rights Act? “The words of Senator Humphrey and his allies forswearing affirmative action should be understood as mere strategic feints,” Harvard law professor Randall Kennedy superciliously explains in his book, For Discrimination (2015), at best a reflection of the limitations “of early 1960s white racial liberalism . . . that regrettably underestimated the barriers” of continued racial discrimination….

[T]he Bakke judgment overturned or rejected opinions by two of the most liberal justices of the twentieth century … the holding of the California Supreme Court, whose 6-1 opinion written by Justice Stanley Mosk, widely regarded as one of the most impressive state court judges in the country, had held, “To uphold the University would call for the sacrifice of principle for the sake of dubious expediency and would represent a retreat in the struggle to assure that each man and woman shall be judged on the basis of individual merit alone.”

[Bakke] also rejected the powerful opinion by Justice William O. Douglas, probably the most liberal justice to serve on the Supreme Court in the twentieth century, four years earlier in DeFunis v. Odegard (1974), a case from the University of Washington law school that foreshadowed the issues in Bakke. “If discrimination based on race is constitutionally permissible when those who hold the reins can come up with ‘compelling’ reasons to justify it, then constitutional guarantees acquire an accordion-like quality,” Justice Douglas wrote.

“Since today’s progressives defend racial preference with the arguments of dead racists,” I concluded, “it would be ironic and fitting for the Court’s conservatives to revive the colorblind radical abolitionist tradition” that today’s progressives have abandoned.


UVa Men’s Tennis: There They Go Again!

First, STOP READING! There is a pre-requisite for reading this post. Do not read another word here until you re-read (you did read it last year, right?) UVa Men’s Tennis: A Dramatic, Perhaps Unique, National Championship! from almost exactly one year ago. Even assuming you did read it a year ago you’ve probably forgotten it by now … so go back and read it again.

…. (Pause while you re-read)

By now, whether you’ve followed the above instructions or not, you’ve probably guessed that, yes, the UVa men’s tennis team has just won the NCAA National Championship, again — the sixth time in eleven years.

There are a couple of striking similarities to last year, other than the final victory in the NCAA tournament. Like last year, UVa lost four matches between Feb. 3 and Feb. 19: 3-4 against No. 5 Kentucky (whom, recall, UVa defeated 4-0 in the 2022 NCAA final); 1-4 against then No. 1 Ohio State; 0-4 against No. 4 Michigan; and again 0-4 against still No. 1 Ohio State. As a result of the defeats UVa’s national ranking fell from No. 1 at the beginning of the season, as the defending NCAA champion, to No. 18 in short order.

Again like last year, there followed a long (21 match) winning streak, resulting in UVa entering the NCAA championship tournament in Orlando ranked, and seeded in the tournament, No. 5. UVa’s tournament results:

  • Quarterfinal: Defeated No. 4 Kentucky 4-2
  • Semifinal:      Defeated No. 1 Texas 4-1
  • Final:              Defeated No. 3 Ohio State 4-0, winning the doubles point and Nos. 1, 2, and 3 singles in straight sets. Ohio State would probably have been ranked No 1 going into the final, after No. 1 Texas had just lost to Virginia and having just beaten No. 2 Texas Christian 4-0 in its semifinal.

Again like last year, UVa defeated teams to whom it had lost earlier in the year, twice to Ohio State by lopsided scores.

Which brings us back to UVa’s 4-0 defeat of Ohio State in the final — as I write, a few minutes ago. I know you’ve just re-read my post linked above, written just after UVa’s victory last year, but in case you cheated and didn’t re-read it, let me quote from it one of the ten reasons I gave why that victory was dramatic and perhaps unique:

7. As the whole world now knows (or at least that portion of it interested in college tennis), in the final match UVa defeated Kentucky 4-0. What is less well-known, or appreciated, is how unusual that score was. The last time an NCAA finalist won without allowing its opponent a single point was 2007! In fact, going back nearly 50 years, to the beginning of the current system of scoring, there have been only eight 4-0 championship matches (including UVa’s recent one), and five of those were won by Stanford when it thoroughly dominated the game in the 1990s. UVa is thus one of only 3 schools in 50 years to have ever won a championship match 4-0.

Time to re-write the record book. UVa now joins Stanford (against Georgia in 1997 and 1998) as the only two teams ever to win consecutive national championships 4-0.


From Affirmative Action To DEI

There was a time, not very long ago, when it was regarded as insulting, even racist, to describe someone as an “affirmative action hire,” even though everyone knew when affirmative action hires were in fact affirmative action hires. That seems to have changed. “Notes of a DEI Search Chair,” which appears in this morning’s Inside […]

Wokery At UNC: If Balanced is Conservative, Then Unbalanced Must Be …

Inside Higher Ed reports this morning: Confusion Over a New Unit at Chapel Hill The University of North Carolina at Chapel Hill’s board chairman told Fox News a new school would provide equal opportunity for right- and left-of-center views. Faculty, caught off guard, have expressed concerns, while the provost says it’s not what it sounds […]

Stanford’s Words For The Woke

Stanford wants to improve its — and by implication, our — language. When the British say, “Can I have a word?,” that’s generally a request for a chat in private. Here, when a student is told, “The principal wants to have a word with you,” the kid knows he’s in trouble. In the current instance, […]

Martin Luther King, Redux Redux …

On a number of Martin Luther King days past I have posted version of the following. Since these comments still seem relevant, I post one version, linking others, here: On a past Martin Luther King day, several years ago, I noted (“Dishonoring Martin Luther King, Jr.”) that one of the saddest commentaries on the sorry […]

“Equity”: Disparate Impact, Unhinged

Long-time correspondent, former western newspaper editor Linda Seebach, comments on my recent Stanford post that “A lot of the mischief has been enabled by “disparate impact” as a legal justification for lawsuits. Maybe that needs to go too.” That is such a good point that I want to address it in a post rather than replying to […]

Affirmative Action Pro And Con

Affirmative Action At Stanford, Then And Now

Diversity As “Racial Parity”?

The Chronicle Airbrushes Affirmative Action

Phonics … Or Not

Barone On Biden’s Leftward Lunge

Patriotism? Recycled Again

President Claims Republicans Are “Fascists’ Tool, Threaten U.S. Liberty”

UVa Men’s Tennis: A Dramatic, Perhaps Unique, National Championship!

“Equity” And The Harvard/UNC Affirmative Action Case