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Better Than Nothing


The Bush administration briefs filed at, literally, the eleventh hour last night in the Michigan affirmative-action cases will be disappointing to opponents of racial and ethnic discrimination, but on balance they were better than nothing. The disappointments: no discussion of the core issue in the case, namely whether racial and ethnic discrimination can ever be justified by a desire for “diversity”; great praise for Texas’s “10 percent plan,” which is legally dubious since it was adopted principally because of the discriminatory racial and ethnic impact it would have; and assertions that achieving diversity is an “entirely legitimate,” indeed “important,” indeed “paramount” aim of the government. On the plus side: The briefs reach the right bottom line, that the University of Michigan’s discriminatory admission systems are unconstitutional; they correctly attack all the various guises of quotas used by the school; and, most importantly, many of the briefs’ criticisms of the specific programs here would necessarily apply to any system adopted pursuant to the “diversity” rationale (for instance, the brief attacks the Michigan program because it has no end-point, passes over better qualified students, and relies on bogus social science – all of which is true of any diversity-justified program). It will be obvious to the Court from reading the brief that the political fix was in, and the brief is therefore an embarrassment to the lawyers who had to file it, but at the end of the day it should help persuade the Court to reject the diversity rationale outright.


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