Interesting Alito Snippet…

Taken from the live blogging on SCOTUSBLOG of the Alito hearing today:

12:01 Feingold asks about Alito’s views on affirmative action and diversity in education. Alito says that when he has taught, diversity in the classroom enriched the experience, and that under existing precedent diversity it is a compelling government interest.

12:05 In answer to questions, Alito says he can’t think of any reason Congress couldn’t prohibit discrimination on the basis of sexual orientation in employment, but he would have to hear all the arguments on each side before reaching a firm conclusion.

When asked whether Congress could prohibit such discrimination by schools that receive federal funding. Alito says Congress has broad power to attach conditions to federal funds.

Hmm. I assume Judge Alito would thus agree that Congress had the authority to pass Title VI of the Civil Rights Act of 1964 (as discussed, among many other places, here), which provided:

No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. [42 U.S.C. § 2000d]

I further assume that Congress would be acting well within its authority if it, demonstrating more backbone than it has lately, said in effect that it really meant it when it passed Title VI, that giving preferences to individuals based on their race is clearly “discrimination,” and hence that no part of its appropriated education funds could go to institutions that practiced such discrimination.

I would like nothing better than for Justice Alito to have the opportunity to rule on the constitutionality of such legislation, and to note what all those now clamoring for justices to give more deference to Congress would say.

Say What?