Stanley Kurtz On Michigan

The estimable Stanley Kurtz has written a masterful summary of the argument and the issues in Michigan affirmative action cases. I will not attempt to summarize it, or even offer any highlights from it, here because I don’t want to provide anyone with even a sliver of an excuse not to go read it immediately. I will say that if Justice O’Connor or her clerks don’t read this they’re not doing their job.

Kurtz discusses Justice O’Connor’s preference for avoiding sweeping decisions based on principle, and why she may have difficulty avoiding doing so in these cases. I would add an additional reason, something I’m sure I picked up from Roger Clegg: the Court here, unlike in Bakke, is dealing with a clear conflict among the circuits over whether “diversity” is a compelling state interest. A compromise, splitting the difference opinion — such as preserving a loophole for “diversity” while invalidating Michigan’s policies as not “narrowly tailored” — would have a hard time resolving that conflict.

Kurtz also discusses, in a chilling manner, some of the probable consequences of grafting a “diversity” exception to equal protection onto the Constitution. Again, I would add an additional one: if “diversity” is held to be a compelling governmental interest, would not the federal and state governments be justified in finding that any university that did not provide racial preferences was engaging in racial discrimination? Would not Title VI thus require cutting off federal funds to them? (I discussed some other implications of this possibility here.)

Say What?