Not long ago there was a considerable amount of discussion and debate on this blog of the “Top X%” plans of Texas, California, and Florida (see, especially, here, here, here, and here, and be sure to read the comments).
Now comes Prof. Thomas E. Wood, best known as co-author of California’s Proposition 209, and moderator of the indispensable list, AADAP-L, on matters dealing with discrimination, who weighs in with a masterful discussion of the entire subject. His email to me summarizes the argument as follows:
My essay is entitled: “Taking Stock: Legal vs. Political Responses to Objectionable Race-Neutral Schemes for Promoting Racial Diversity.” Briefly, I argue that such plans are constitutional (and why), and how the courts are likely to distinguish such plans from an important U.S. Supreme Court precedent, Washington v. Davis (1976). I also argue that facial legal challenges to such schemes would be politically unwise, and why. Finally, I suggest that in California, anyway (because of the autonomy conferred on the Board of Regents by the state constitution), the best response to objectionable schemes might be a University of California Admissions Initiative (I call it UCAI), one of the principal advantages of which would be that, unlike legal challenges, it could distinguish between objectionable race-neutral schemes for promoting diversity and ones that are not objectionable or are even worthy of support.
I give below the Table of Contents of the essay.
Tom Wood
Moderator
+++++
TABLE OF CONTENTS
INTRODUCTION
PART A: The wrong way to respond: facial legal challenges to race-neutral
schemes
* Constitutional challenges can’t be nuanced-they are all or nothing
* Racial and ethnic lobbying has always been a well-recognized and accepted
feature of American life and politics
* Facial legal challenges would entail a de facto repudiation of racial
diversity and inclusion as legitimate goals of public policy
* Even very conservative justices will uphold race-neutral schemes
* Courts will strike down facially constitutional measures on grounds of
impermissible intent only if they have compelling reasons for doing so:
First Amendment considerations
* Distinguishing from Washington v. Davis: United States v. Carolene
Products
* The politics of affirmative action
PART B: A better way to respond: Using the normal political process to
replace objectionable race-neutral schemes with more acceptable ones
* The legal conditions race-neutral schemes must meet
* Why many-perhaps most-race-neutral schemes for promoting racial diversity
will be hard to defend politically
PART C: UCAI: the U.C. Admissions Initiative
* UCAI would be a winning strategy
* UCAI would offer a better alternative (cf. “You can’t fight something with
nothing”)
* Objections to setting U.C. admissions through the state constitution
* Objections to regulating the percentage of the state budget allocated each
year to U.C.
* Would the UCAI be too limited in its focus to do much good?
PART D: Race-neutral provisions to promote racial diversity and the UCAI
I encourage everyone to read it in full (and not only because he reinforces the arguments I made…).
