Another Major Flaw In The ACLU/NAACP Anti-Prop. 2 Brief

Recall, as I discussed in my post immediately below, that the ACLU/NAACP theory is that a measure that bars preferential treatment of individuals or groups based on race or ethnicity discriminates against minorities because it makes it harder for them to achieve preferential treatment than members of other groups. Really.

To be fair (“For a change,” I can almost hear some readers muttering), this bizarre argument is able to cite two precedents, both in my opinion really bad. But forget my opinion. Even the Ninth Circuit, which considered this exact same argument against the virtually identical Proposition 209 in California (as I discussed in my previous post), thoroughly analyzed these precedents and found them inapplicable to a measure banning all race and ethnic preferences.

There is another serious flaw in the ACLU/NAACP argument, however, one that was not apparent when the Ninth Circuit considered these issues in 1997. As stated, the ACLU/NAACP brief argues that a measure denying racial preferences to minorities would place a “substantial and unique burden on racial minorities.” Leave aside for now that this mischaracterizes Prop. 2, which bars preferences based on ethnicity, national origin, and sex as well as race. More seriously, this argument falsely asserts that the racial preferences barred by Prop. 2 were intended to be and were in fact a benefit — indeed, a “unique” benefit — to minorities.

But that argument, according to the University of Michigan itself and all other like-minded defenders of racial preference in university admissions, is manifestly false. U-M took great pains in its Gratz and Grutter briefs and elsewhere to emphasize that education for all its students depended upon the university having a “critical mass” of minorities, a mass, it claimed, that could only be maintained by the use of racial preferences.

Indeed, as I’ve pointed here too many times to cite, far from being a benefit bestowed on minorties, preferential treatment, as justified by the bestowers, actually uses minorities to provide a benefit to others. As I argued, for example, here:

Not to put too fine a point on it, the elite institutions that offer racial preferences are using minorities to provide “diversity” to their non-minority students. In return, those students are allowed entry into institutions whose requirements would have excluded them if they had been judged by the same standards as the other students. This bargain may or may not be beneficial to the instiutions or to the preferentially admitted, i.e., differentially treated, minorities, but it is a fallacy to point to diversity benefits allegedly received by the preferred to justify the preferences extended to them. If “diversity” justifies racial discrimination, it is because of the benefits received by the non-minorities who are exposed to the preferentially admitted minorities. To claim otherwise is less than honest….

It is worth emphasizing … that none of [the] alleged benefits of diversity to the preferentially admitted blacks requires admission to highly selective institutions. If the University of Michigan were forced to abandon its race-based preferences and the minority students who would have been admitted under the abandoned program instead attended Michigan State Univ. or Eastern Michigan Univ. or Wayne State Univ. or Northern Michigan Univ., they would receive all the diversity-specific benefits they would have received in Ann Arbor. It is only the non-minority students at Michigan who would have experienced any loss.

And here:

[Former Stanford Law School Dean Paul] Brest is honest enough to recognize that admitting minorities so that the other students may benefit from being exposed to their allegedly different perspectives places a burden on them. He notes that “[w]hile minority students complained of the burden of constantly having to educate their white classmates, the minority students learned as well.” Of course they did, but the fact they did does not validate the diversity justification for racial preferences. They would also have learned at the schools to which they would have been admitted without preferences. The diversity argument is based on the contributions the preferentially admitted minorities make to others, not on the benefits they undoubtedly receive.

Or, and this will be my last example of this argument today, here:

Even though [preferentially admitted minorities] were awarded the prize of admission, they … were treated as a means of providing a benefit to others, i.e., the non-minorities who will benefit from being exposed to them. They are not treated as individuals. They are not admitted, after all, to provide “diversity” to themselves but to others. True, they may receive some benefit from being in a “diverse” student body. But they would receive that benefit no matter what majority-white institution they attended. That is, admitting the preferentially treated blacks admitted to any highly selective university does not provide them with any diversity benefits they would not receive at less selective majority-white institutions. The diversity benefit that preferences are said to provide, that is, flows to the non-minorities exposed to the preferentially admitted minorities. This is treating them as a means, not an end….

I could go on, but won’t. My point here is simply this: in addition to all the reasons provided by the Ninth Circuit why the argument that measures that bar racial discrimination are not racially discriminatory fails the guffaw test, the premise on which the ACLU/NAACP argument is based — that Prop. 2 deprives racial minorities of a “unique” benefit to them — is, if you believe U-M and other defenders of racial preference are being sincere, false. Eliminating racial preference will deprive minorities of no diversity-justified benefit whatsoever.

And if you don’t believe they are being sincere there, why believe them here?