Affirmative Action vs. Equal Protection


A few minutes into yesterday’s oral argument in Fisher v. University of Texas — a case involving affirmative action — Justice Breyer impatiently blurted out “I want to know whether you [Fisher’s lawyer] are asking us to overrule Grutter,” referring to Grutter v. Bollinger, a 2003 decision which upheld University of Michigan Law School’s race-conscious admission program.

Heading into yesterday’s argument, Breyer, Sotomayor, the media, and all of the nation’s professional diversity mongers were freaking out about the possibility that the Court might overrule Grutter, which has has attained a Roe-like status as a sacred cow. Unfortunately, Fisher’s lawyer played it safe, reassuring the Court’s liberals that they didn’t have to overrule Grutter

But the truth is that Grutter — which holds that “diversity” is a “compelling state interest” that trumps Equal Protection — is a travesty or, as our own John Yoo recently wrote, a “blemish” on our constitutional law. The Equal Protection Clause provides “no State shall deny to any person within its jurisdiction the equal protection of the laws.” If the framers of that amendment wanted to make an exception for “diversity,” they could have found the words to do so. 

For my detailed analysis of the Supreme Court argument, and why Grutter must go, see my piece on NRO’s Bench Memos.

There are 6 comments.

  1. Inactive

    If diversity is a compelling state interest can we grind down the current federally funded liberal elite academic institutions on the basis that they are intellectually and ideologically singular?

    • #1
    • October 12, 2012 at 1:25 am
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  2. Member

    The travesties are protean in this debacle but what comes to mind is the detriment to those served by someone who was given a degree because of minority status rather than intellect or ability. I have seen highly inferior physicians cause great harm with their affirmative action M.D. Our whole country is victim to such a man.

    I realize this isn’t a very PC comment but I just don’t care to lie about facts to make others feel better.

    • #2
    • October 12, 2012 at 1:33 am
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  3. Member

    If diversity is a compelling state interest, then I want to see more people from the Indian subcontinent in sports teams.

    The argument is absurd. Colleges can make exceptions for individuals, and they do all the time. However having a law that mandates diversity is the opposite of freedom as well as fairness. It’s the opposite of “equal” in the equal opportunity clause.

    • #3
    • October 12, 2012 at 1:37 am
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  4. Thatcher

    Get ’em, Adam!

    • #4
    • October 12, 2012 at 1:47 am
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  5. Member

    I’m always amused by the attempt to show that there is insufficient diversity by pointing out how few minorities there are but then try to avoid using the quota to which the logic of their argument compels them. This reminds me of the case with the Connecticut firefighters and their promotion exams. 

    • #5
    • October 12, 2012 at 1:54 am
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  6. Thatcher


    Diversity is not a compelling state interest. Equality of opportunity is a compelling state interest. To the extent that real prejudice is holding someone back it should be fought. However, the idea that a complete lack of capacity to perform equals prejudice is infantile.

    In 1974 black women who would have had trouble finishing high school were admitted to the Harvard Medical School. This was a disaster for them personally and for the profession. Well intentioned insanity is still insanity.



    • #6
    • October 12, 2012 at 3:25 am
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