"unprincipled Sandra Day O'Conner"?

Is it so unprincipled to follow precedent? O'Conner followed Bakke almost without waiver. If one disagrees that diversity is a compelling government interest, one needs to argue with Justice Powell, not O'Conner.
And as a side note- let's not forget that along with the interest in diversity is that of academic freedom and a school's ability to decide for itself where it needs improved diversity. In that regard, there would be nothing at all wrong if a school wanted to consider baptist-ism, or hinduism as a noted factor in selecting its student body. Of course, many of these factors might inspore only heightened, or even rational-basis scrutiny, as opposed to the strict scrutiny applied to race classifications.

Dean, your link to Dhalia is wonderful. While not perfect, the twin cases do manage to retain strict scrutiny as the proper standard (even if they do not really use that strick a scrutiny, boy it still sounds like Adarand).

What is amazing, is the fear that Thomas puts into liberal hearts. And Frederick Douglas, how dare he quote Douglas. The thought of real race-neutrality is not an idea the liberals are ready for.

I think this ruling does open the door to some "seemingly ridiculous" lawsuits.. like mens organizations suing colleges with 60% women students to favor male applicants over female: all in the interest of adequate diversity..!

I had always assumed I could have passed calculus had I not had two [I suspect] Hindu teachers in a row that I was unable to understand at all. The whole of the Mathematics Department seemed to be over run with Hindu Indians and Taoist Chinese. All I needed was a nice English as a first language speaking geek to explain things in a language that I could understand. As it was, I dropped calculus twice and finally changed majors to Political Science. Just think, but for the lack of proper teachers, I might have been the designer of the World Trade Center Memorial. As it is, even without my Architecture Degree, I think I could have come up wiht a better design.

Well shoot -- now I'm worried. If diversity is a constitutional principle, then my blog is unconstitutional because its editorial staff is 100% white, (nominally) Christian, and male.

Dean, I hate this rotten outcome every bit as much as you do. What does it do to your vow to fight this unending diversity requirement for as long as you live? You know that if S D O'C resigns Bush will replace her with Gonzales, the very WH twit who forbade Ted Olson to make an argument against skin-color diversity in the government's brief. The only hope is to appoint justices who decide cases on the law, not on whatever outcome their inner muse tells them is desirable from the standpoint of "common decency." Forget about it. As long as there are 41 or more Dems + Rinos in the Senate, we are screwed. The SCOTUS has just handed carte blanche to admission boards to pull any fast one they want to, as long as it's done with a wink and a nod and a nudge to the ribs.

I think that calling a Supreme Court justice unprincipled kind of flies in the face of civil dialogue. The precedent is there, and while it might not make a lot of people happy, precedents tend to be followed in the judicial system.

However, I agree that Affirmative Action and diversity *are* a form of racial discrimination. My question is: what's the alternative? Merely saying, "We're going to treat everyone the same," simply holds no water, given the past and present racial discrimination that got us to where we are now. Injustice was done in the past, and remedy is required -- not just words on paper like the Emancipation Proclamation, real remedy. What mechanisms do you propose be put in place that would prevent racial discrimination in employment and education without, in effect, engaging in racial discrimination?

You've said no, and I respect your views. What would you say yes to?

O'Connor's view was unprincipled because it stood on nothing. She decided to treat a concurring opinion written by one Justice a quarter-century ago as a precedent, effectively establishing a precedent herself. Based on no particular principle at all except preserving the right to discriminate on the basis of race. [shrug]

As for what I'd do instead of racial discrimination? Well first off, let me make it clear: I do not accept that past discrimination is the cause of any black person's problems who was born in the last 30-40 or so years. Indeed, I believe that anyone who thinks otherwise is guilty of harboring racist beliefs. For it assumes that being black, by itself, makes you an automatic helpless victim of your own fate, based on things that happened to your parents, your great-grandparents, and so on. It assumes that just being black makes you a mental cripple entitled to special treatment.

The fact is that the vast majority of poor, uneducated people in the United States are not black. The majority of them are white. In fact, add up all hispanic and black poor people together, and there are still more white poor uneducated people.

Street gang hoodlums. College droputs. Drug-addled homeless bums on the street. People stuck in deadend, go-nowhere jobs. Most of them not black.

Therefore you're asking me to "remedy" a problem on terms I do not accept. I state this openly: if you believe that the problems faced by a disproportionate number of blacks is caused primarily by their blackness, then in your heart you're a racist.

The solution is the same as it's always been for every poor, uneducated, disrespected person in America: a decent education starting at an early age, in an education system that is controlled by and accountable directly to individual parents, instilling a work ethic and the belief that you can achieve, and rejection of victimhood mentality.

Had not made the horrible, horrible mistake in past generations of assuming that we could fix poverty by throwing money at people and giving them free stuff (thus making them dependent on others rather than on themselves), and had we not, in the early 1980s, begun a secret program in universities to cut standards for black kids so that not as much was expected of them, we wouldn't be in this horrible mess today.

The only way out requires a lot of hard work. It requires that we stop pretending that being black makes you a cripple from day one. Then, we begin the work we should have begun 40 years ago. Which involves not fixing race issues, but fixing the universal problems caused by a lousy, unaccountable primary education system and feeding the "you're poor because you're a victim" mentality.

I note once again that this used to be the liberal position -- and I would, frankly, argue that it still is, but too many liberals have forgotten what liberalism is all about.

If you're right -- and for the sake of argument, you're right -- are you arguing that there is no (or negligible) educational or employment discrimination in this country based on race? If you oppose Affirmative Action (and you seem to have some valid reasons for opposing it), do you oppose the EEOC?

I think it's a pretty fantastical accusation to make that if I recognize that race still matters in America and racism still exists in education and employment, that I myself am a racist? If I recognize anti-gay sentiment in this country, am I a homophobe? If I recognize the epidemic of violence against women in this country, am I a rapist? I don't get your argument.

Maybe the belief that black people qua black people are somehow inferior and need help just because they're black would make someone a racist; but I don't believe that. Black people are obviously as able, as intelligent, as capable of living their own lives and determing their own fate as any other race.

So why is there still disparity?

Your assertion that the attempt to help black people has created disparity may have some weight, but it isn't the whole story. Starting with slavery, and ending with Jim Crow laws, the disparity has been planned, socially and institutionally. Affirmative Action was a radical attempt to forcibly undo those injustices, and whether you agree with its tenets or not, the effect is clear: more black people get good educations and make more money than ever.

I don't think either side can lay claim to victory for this outcome: the credit goes to the people of color themselves who got college degrees and pursued their careers.

It's just utterly beyond me how in one sentence you can tell gay people to stop shouting and engage in a civil dialogue to get our needs met, then call any supporter of Affirmative Action a racist. Your feelings are strong and understandable, but you're doing the very thing you're telling people like me not to do, and out of respect I have to question that.

are you arguing that there is no (or negligible) educational or employment discrimination in this country based on race?

Yes.

Except for the racist stuff being perpetrated by universities like U of M, anyway.

If you oppose Affirmative Action (and you seem to have some valid reasons for opposing it), do you oppose the EEOC?

Not if it's actually still doing its job of overseeing corporate America and making sure they aren't discriminating. Of course, most of them are so terrified of even the remote possibility that they'll be seen in that light, they go to sometimes ridiculous lengths to avoid it.

I think it's a pretty fantastical accusation to make that if I recognize that race still matters in America and racism still exists in education and employment, that I myself am a racist?

It would be fantastical. But I didn't say that.

I am stating, openly, that most of America is no longer racist, and that racism is no longer the primary cause of any significant problem for any significant percentage of the black population. Except self-inflicted racism within the black community itself.

Of course it still exists. But it's rather racist to assume that it's the main thing stopping anyone from getting ahead. In fact, it's racist on several levels.

So why is there still disparity?

Well, for one thing, a disproportionate percentage of them are stuck (alongside countless white kids, hispanic kids, Asian kids, Arab kids) in bad neighborhoods with lousy, unaccountable schools and dysfunctional economic systems in their cities.

Furthermore, we have a system in place now which discriminates in favor of black kids with lower test scores, lower grades, and lower overall educational ability, encouraging them to go into universities where they are out of their league. They drop out at disgustingly high rates, or often wind up going into marginally useful degree programs because disproportionate numbers of them can't compete for the really valuable degrees.

Not all of them, of course. Just a disproportionate number of them.

Furthermore, we continue to teach them that, 40 years past the passage of the Civil Rights Act of 1964, ending discrimination against them, their primary obstacle in life is racism. That is, indeed, a phantasm.

Are you poor and illiterate and helpless because you're gay and have faced discrimination, John? Why, in fact, is the average income of gay people in America higher than the national average, not lower, despite widespread discrimination against for so long?

Could it be, John, because discrimination isn't the primary cause of poverty and lack of education?

Affirmative Action was a radical attempt to forcibly undo those injustices, and whether you agree with its tenets or not, the effect is clear: more black people get good educations and make more money than ever.

Let us be clear about the history of this: in the 1980s, this was going on for a decade while the universities denied they were doing it--and calling anyone who said they were doing it racists.

Then the cat got out of the back in the 1990s, and they pivoted, and started claiming then that yes, this is what they were doing all along. It was simply necessary.

Got that? I remember it well. In the 80s people would have gasped in shock if you said black people were so crippled that schools needed to give them special treatment.

Now those running programs continue to acknowledge that record numbers of these kids drop out. We know why: they aren't academically prepared and can't compete.

So where do you get this notion that the gains made in the black community are because of a secret everybody denied for a decade? Any other possible causes there? And how can a system that we know causes massive numbers of them to wash out of college be helping them? Some of them are kids who might have done better at less competitive state universities, but we send them where they aren't ready instead--just so we have enough of them around to satisfy our white liberal guilt, apparently. As long as we don't look around too hard on graduation day, it's very soothing.

What is with this stuff about hundreds of years of oppression? Gay people have been oppressed for thousands of years, John. So why aren't you and all your gay and dyke friends unemployed? Could it be that discrimination does not cause poverty?

(Have I mentioned that my boss's boss here in big bad racist corporate America is a black dyke, by the way?)

I know lots of people who've faced terrible racial discrimination and achieved. Amazingly, none of them are black or hispanic, so none of them got any Affirmative Action help.

I believe that Affirmative Action is a hindrance to black achievement. That and, of course, the welfare programs of the 1960s, 1970s, and 1980s that did so much damage to the black community.

It's just utterly beyond me how in one sentence you can tell gay people to stop shouting and engage in a civil dialogue to get our needs met, then call any supporter of Affirmative Action a racist.

It is racist to suggest that black people are automatically crippled by this society just by dint of being black, John. I stand by that. And that is what these programs do--because they don't help you because of social disadvantage, they help you solely because of your skin color.

The assumption must be that the skin color alone stunts your potential, and is the most important factor to society. How is that not racist?

The assumption underlying this "radical" program that people are defending is that the child of two black parents who made $650,000 a year, who went to the best private schools and never even heard the word "nigger" until he bought his first rap CD in High School is deserving of special treatment, while an Arab or Irish kid from the slums of Chicago is not deserving of that same special consideration--because the legacy of oppressions that ended almost 40 years ago make that necessary to help the black kid along.

There is no other word for that but racial discrimination, John, and there is no way I can think of to defend such a thing that isn't racist.

It's already been noted but it bears repeating -- there was no precedent for this decision.

Powell's justification for discrimination in Bakke was his own opinion, not joined by any other justice, not part of the Court's holding, and therefore not precedent.

O'Connor's rationale here is a perfect example of judicial legislation at it's worst.

If we really intend for the Constitution to be our rule and guide, how can something be constitutional today tha may not be constitutional 25 years from now?

Kevin is correct. Still, maybe I should change my "unprincipled" charge and say "non-principled," which is more what I meant.

They adopted as precedent something that was never a precedent, and for no discernible reason except that they did not want to rock the boat.

Scalia was honest enough to call a spade a spade and note the truth of what they were doing: making a decision with no particular reasoning at all.

Although, again, we should celebrate the end of the deplorably racist point system, anyway. Perhaps it'll force the universities to think long and hard about how to really do this. Starting, perhaps, by concentrating on helping all struggling kids, under the assumption that it'll help the black kids who really need it, and not the countless ones who don't.

If it's time to move beyond Affirmative Action -- in fact, if Affirmative Action was never the answer -- I'm all for doing away with it. I don't feel like I have all the facts (just all the opinions), so I would hesitate to get further into this argument, simply because I'm not informed enough.

However, I want to counter Dean's assertion that gay men make more money. There are recent studies that say otherwise, and my own personal experience informs my opinion to the contrary.

Gay people don't experience discrimination until they come out. You don't necessarily know that a gay person is gay until puberty or later. In fact, sometimes you never find out. For that reason, anti-gay discrimination takes on much different forms than anti-black discrimination.

For those of us who were openly gay during our school years, however, being gay can and does have significant educational and employment disadvantages. Before changing schools where there was a more civil environment, I was regularly verbally, physically and emotionally abused by other students. I missed school because of fear of violence and because school was hell. As a result of missed school and missed educational opportunities that followed directly from anti-gay violence and harrassment (from both students and teachers), I didn't go to college. I went into therapy instead.

I've been fired from jobs because I'm gay. I've been physically assaulted because I'm gay. I've been screamed at, protested against, legislated against, villified, and otherwise marginalized because I'm gay.

The fact that I have a vocabulary, that I have any education whatsoever, that I'm employable -- that I'm alive, really -- was through my own force of will. I made it, albeit modestly, because I decided to, and because of those few people who supported me along the way.

I just really don't want to hear about how easy and lucrative it is being gay, because that's just downright out-of-ass talking, and that's that.

Now, getting back to race: I agree with Dean that there is much, much less racial discrimination in this country. The idea that racism is bad has become a mainstream value; and many of the problems that plague black Americans are class-based problems, culture-based problems, and legacy-based problems that very well might not be solved with tools like Affirmative Action. It might be time to say goodbye to it.

Dean, your son is no more and no less valuable and worthy than any other child. He may have talents others do not, or he may lack aptitude that other have. But I would never, ever say that another child of similar ability should get ahead at his expense, just because of race.

I know we're at odds on a lot of things, but I really, honestly agree with you. You're right. And I'll offer you some advice you offered me: persuade, don't attack. Reading your words has given me an opportunity to look at my own assumptions. Once you've got somebody's vote, you shake their hand and thank them. Belaboring the point won't make you any righter.

So: how to help struggling kids? How do we do it?

Most of my anger has, as I think I've written earlier, been more of the frustrated and deeply disillusioned type rather than anything else. This stuff matters, and things we do now on this will have ramifications decades and generations down the road. "Slippery slope" is a logical fallacy, but jesus.

If we want to help the disproportionate number of blacks who are at the bottom, we help everyone at the bottom. If we want to create a different permanently-different class, we give everyone of a certain color special privs, whether they need 'em or not. Why cloak in these fake narratives about "diversity," which is just a euphemistic way of saying, "we need more darkies, don't care how you get 'em just get 'em in here so things look better."

Am I self-righteous and not knowing when to let up? Maybe. But it's the future of the country, man, and I feel like I've been having the same exact argument since I was 13 years old.

Here's a thing: watch Nick At Night reruns for an old episode of The Odd Couple. Look for the episode where Oscar and Felix befriend an Eskimo kid who's come to New York for a football scholarship. Felix finds out a music conservatory has a scholarship for him too because the kid's a cellist, and tries to talk Oscar into pushing the kid toward music. At the end of the episode, they find out that the kid is a horrible cellist, can barely play a note, and that the conservatory knew this--they just wanted to be able to say they had an Eskimo cellist. Everyone was horrified, and we all learned the great lesson.

Can you even imagine such a thing being aired today? Indeed, I wonder if Nick At Night would even run it now.

I grew up around blue collar racists who called me a liberal idiot for saying that discrimination was wrong, wrong, wrong, wrong. I stood up to them, and these arguments bring all that back to me. I'm so tired of coming to work every day surrounded by supervisors and coworkers of all races, and then going out in the world and hearing that racism, racism, racism explains why kids with parents who make ten times my income need special privs that my kid doesn't get because he's got the wrong skin color, and I just about lose my mind.

We've forgotten the agenda. It's supposed to be about hope, not who's better than who, or who's worse off than who.

As for gay prosperity: oh, I read so much disagreement over this issue, even from queer writers, I don't know what to think. My personal experience? Most of my queer friends are doing great. Some of them who are doing great and have never been attacked, spit on, or fired bitch a lot about how oppressed they are anyway. In my whole life, I have "met" only two gay people who were fired solely for being gay, and both were online. What does that mean? I don't know. Maybe I'm lucky. Maybe you're unlucky, John. I guess we aren't going to solve that one tonight.

Coming to the Michigan Blog Party, by the way?

I think the precedent discussion is a good one, so please do not belabor me for offering another counter.
To be sure, the precedential nature of Powell's opinion was in some doubt before cert was granted for the Michigan case, and the circuits were split on the issue. But that there was debate amongst the circuits as to whether Powell's opinion created a go-ahead for diversity as compelling interest does not make a Supreme Court decision saying 'yes' not-principled.
Certainly one can disagree with O'Conner's conclusion that Powell's opinon is binding- but one is obligated to give a sound argument, rather than merely mouthing off 'not-principled.'
In Bakke, four Justices would have upheld the AA policy on any grounds, because they applied a lesser scrutiny. Four Justices overturned the program via strict scrutiny and because AA was not allowed (being racial discrimination) by federal law, such as Title VI. Powell also rejected the AA action program as it existed as a set-aside; but, Powell decided that class-body diversity is a compelling interest in the education setting, and thus would pass the first prong of strict scrutiny in an equal protection challenge. He overturned the set-aside as being not narrowly tailored.
Powell's vote, then, was the narrowest concurrence of some AA policy. Does this narrow tie-breaker serve as precedent? Valid question, and reasonable people can differ.
I agree with O'Conner's conclusion- and think it is the most principled appoach possible.
She could have said a lesser scrutiny applies, as did four Bakke Justices, and applied only hightened scrutiny or rational basis review. I would think this the wrong conclusion as it is clearly a minority view from Bakke.
She could have said federal law disallows AA programs, as did four Justices in Bakke- but this again was clearly a minority.
After Adarand, it is clear that strict scrutiny is used on race-classifications benefitting minorities. The question is whether diversity is a compelling interest. The tie-breaking opinion in Bakke says it is. It is clear that the four other Justices (Brennen, White, Marshall and Blackmun) agreed that it is. It seems to me that O'Conner's use of Powell's opinion is careful jurisprudence. In any event, it is not lacking principle.

>>If we really intend for the Constitution to be our rule and guide, how can something be constitutional today tha may not be constitutional 25 years from now?

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Duuuuuuuuuh. It didn't even take a Constitutional scholar to figure that out! Who is it that called Clarence Thomas a lightweight?