December 07, 2002
From the desk of Jane Galt:Cui Bono?
Michael Kinsley's column makes an interesting point, one that had occurred to me: most of the people suing the schools probably wouldn't have gotten in even if there were no affirmative action.
Kinsley seems to think that this is fatal. I think it's pretty damning, since the students suing would have certainly been admitted if they were minorities, which kind of erodes the "one factor among many" argument. And claims about diversity and injustice get a little tenuous by the time you get to law school; if affirmative action is supposed to remedy discrimination, how come the affirmative action practiced by the undergrad institution didn't do its job?
But even more basically, this mistakes the argument. These students are arguing that they were denied equal protection because of their race; they were held to a higher standard because they were white, in the same way that blacks were held to a higher standard on, say, literacy tests for voting, because they were black. (I'm not trying to posit moral equivalence here; only legal and logical.) It's a matter of how you look at it. There is no logical reason to define the standard for whites and asians as "The Standard" from which minorities deviate; it is just as reasonable to define the standard for minorities as the basic standard, and the standard for whites and asians as an unconstitutional special barrier established for the purpose of discriminating against them by race. Which, in fact, it is; whites are held to a higher standard so that there will be fewer of them, and thus, more room for protected races.
To have standing to sue, Grutter et. al. don't need to prove that they would have been admitted had there been no double standard; only that the double standard materially harmed them, which it did by lowering their chance of admission. At which point, they have every right to invoke the equal protection standard.
We could get into all sorts of arguments about cosmic justice, but the legal point is sound. And if you want to argue cosmic justice, does it really matter whether Grutter was the white student who wasn't admitted? Someone who would have gotten in had to give up their place because we wanted to remedy past discrimination. That someone has a right to cry foul, which is what Grutter is doing.
Posted by Jane Galt at December 7, 2002 08:52 AM | TrackBack | Technorati inbound links