Reductio Ad (Even More) Absurdum

I had thought that the reductio ad absurdum award for the most mind-bending argument for preferences went to the ACLU and its fellow complainants against California’s Proposition 209 for their argument that the 14th Amendment barred California from adopting a constitutional amendment barring discrimination based on race. (Discussed here and here.)

Now I’m not so sure. At least it has a real competitor. I still haven’t read all the briefs in the Michigan cases, but I continue to look at them when I can. Since there are a finite number of arguments that can be made, pro or con, on preferences, after a while there are very few surprises. But every now and then something pops up that is beyond the pale of the expected, and such was the case today when I looked at the brief supporting Michigan’s preference policies written by New Haven attorney Victor Bolden on behalf of the cities of Philadelphia and Cleveland and the National Conference of Black Mayors.

Bolden boldly, if implausibly, argues that if the Court bars the consideration of race in admissions, universities will be inhibited from admitting minorities for fear of inviting legal scrutiny! Moreover, he argues, courts should be very hesitant about protecting individual rights in academic settings. Really. I’m not making this up.

[The] proposed �no consideration of race� rule will either have a �chilling effect� on the college and university admissions process, or require federal courts to be the admissions office of last resort for nearly every college and university. This chilling effect, ironically, would result in minority students, who despite their test scores or grades are still qualified candidates for reasons other than their race, being denied admission because of their race so that colleges and universities can avoid constitutional scrutiny of their admissions processes. Alternatively, these institutions will follow court-imposed admissions criteria based solely on standardized test scores and grades, to the disadvantage of amici�s students, a majority of whom are African-American and Latino. Otherwise, rejected white applicants will inundate federal courts with lawsuits, extending the jurisdiction of Article III judges far beyond anything this Court has ever deemed permissible. This Court has always recognized that the jurisdiction of Article III judges to interfere in the academic decision-making process is rather limited, even for the purpose of vindicating rights under the Fourteenth Amendment. (pp. 3-4)

Let me see if I’ve got this right. An anti-discrimination rule, i.e., a rule saying race may not be taken into account for admissions, is bad because it opens the door (and even puts out the welcome mat) to lawsuits claiming discrimination based on race. But the absence of such a rule, explicitly legitimizing discrimination based on race, is good, in part because the authority of courts to protect individual rights ought to stop at the schoolhouse door.

This would have been news to the civil rights movement back in the old days, when it believed in civil rights.

Say What?