Legal Times published two articles yesterday on the Michigan AA cases that make it worth taking the time to fill out registration material to receive a free subscription to law.com. (Link via Howard Bashman. Click on the line to either of the articles mentioned below to be taken to the free registration page.)
Actually, to be honest, only one of the two articles is really a compelling attraction, “Twist the Law as You Will, Discrimination Is Still Wrong,” by Roger Clegg, which, despite what I regard as a rather unfortunate title, is a tour de force.
Clegg provides a thorough and penetrating analysis of both the legal and policy arguments against racial preferences. Indeed, his summary of the law is the best relatively short discussion of it I’ve seen. Here’s part of it:
The 14th Amendment prohibits any state actor (including a university) from “deny[ing] to any person within its jurisdiction the equal protection of the laws.” When this became part of the Constitution in 1868, foremost in everybody’s mind, of course, was denial of equal protection on the basis of race. And note that they didn’t limit the guarantee of equal protection to those of a particular race or races.
That not clear enough? Well, a university and its students also enter into a contract whereby tuition buys instruction, and the Court ruled in Runyon v. McCrary (1976) that 42 U.S.C.
