The Return Of Sub Judice Redux

“D,” one of the two principals of the fine blog Sub Judice (he’s the one who is only thoughtful and temperate while his colleague, “P,” is thoughtful, temperate, and persuasive) emails, politely, to inform me that he has a “mildly intemperate” response to my recent post.

“D” must run with a fabulously mannered and polite crowd if he regards that post as even “mildly” intemperate. It is not. It is strongly argued, but it fits comfortably within the “thoughtful, temperate” zone I have come to expect from him. Well, maybe a tad higher temperature than normal, but certainly nothing approaching the inferno of hot air that would melt diamonds that I often get from those who share “D’s” predispositions.

But if “D” is true-to-form in his thoughtful temperateness, it must be said that he also remains unpersuasive. For example, he asks “P,”

In year Grutter+1, when you look around your state’s campuses and see a sea of all white faces, don’t you think something has been lost? If not, don’t you think reasonable people would disagree with you?

“P” can answer for himself, and I assume in good time he will. Meanwhile, let me say “no” and “maybe, but they’d be wrong.” First, in Proposition 209+1 California, if you looked around the state’s campuses you would not see “a sea of all white faces.” What you would have seen is fewer “diverse” faces at Berkeley and UCLA (assuming, reasonably, that “diverse” means black and Hispanic but not Asian, etc.) but even more at the state’s other campuses. And, of course, +1 is not the best standard. If you look now, you would see that the numbers have moved back up even at Berkeley and UCLA, and, equally important but under-appreciated, the graduation rates for blacks and whites/Asians at the flagship schools have equalized. Before, in the preferences era, with lower standards for blacks and Hispanics, the front door was open wider to them, but not the exit. A far smaller proportion of the preferentially admitted actually graduated within six years than of those who were admitted under the standards that applied to non-minorities.

He also takes me to task for my Bob Jones analogy, but, not surprisingly, I don’t think he gets it quite right. First, he says the issue involved a “charitable exemption.” Perhaps that is the shorthand, but as I mentioned the tax code provides for exemptions for “religious, charitable, or educational” organizations. The IRS, based on common law and (yes) the Magna Carta, argued that an organization could not be “charitable” if it offended “public policy.” But even granting that, the tax code still said “or” and not “and,” meaning that an organization could qualify if it were any one of the three. (Maybe that’s nitpicking, but isn’t that what lawyers do?)

“D” thinks my “dredging up” Trent Lott’s argument, which is a preview of the current argument that racial preferences are protected by the shield of academic freedom, was unfair, sort of like someone on his side quoting Strom Thurmond on colorblindness to discredit my side. He may have a point here, although I’m not sure that Thurmond’s past racism invalidates his more recent arguments (if, indeed, he has made any) for colorblindness. But let it go and drop Lott. (My side, recall, was most adamant about dropping Lott, and good riddance it was.) The main point is, “D” didn’t answer my (and, for that matter, Lott’s) point about Bob Jones: if Michigan’s academic freedom allows it to engage in racial discrimination to promote diversity, why doesn’t Bob Jones’ First Amendment right to both academic freedom and the free exercise of religion allow it keep its tax exemption while following divine orders (O.K., its view of divine orders) to prohibit interracial dating?

It still seems to me that anyone who accepts the principle underlying the Bob Jones result should have a hard time arguing that Michigan’s academic freedom trumps its obligation to refrain from racial discrimination. Or to make an even closer analogy: if a firm majority of the Supreme Court ever again comes to view the “without regard” principle barring racial discrimination as at the core of the 14th Amendment and, on that basis, upheld revoking the tax exemption of the Bill Gates Foundation because its race exclusive scholarships cannot be charitable since they “violate public policy,” no objection should be heard from principled defenders of the Bob Jones result.