Grutter and Discrimination
While it is true, as Clark Patterson says below, that Sandra Day O’Connor never directly employed the idea of racial preferences as remedies for past discrimination in her confused and confusing Grutter decision (although it is possible to read parts of it leaning that way), that note was sounded by Justice Ginsburg in her concurrence. Ginsburg refers to the history of segregation and the legacy of slavery, and asserts, “It is well documented that conscious and unconscious race bias, even rank discrimination based on race, remain alive in our land, impeding realization of our highest values and ideals.” Furthermore, Ginsburg cites statistics that show that large numbers of blacks and Hispanics attend schools that are majority minority, and that these schools offer “markedly inadequate and unequal educational outcomes.” (She makes no effort to suggest that the individually favored blacks and Hispanics in the University of Michigan Law School class under scrutiny had suffered such educational deficits.) In addition she cites the International Convention on the Elimination of All Forms of Racial Discrimination and the Convention on the Elimination of All Forms of Discrimination against Women (I guess Barbara Grutter didn’t count in that), both of which endorse affirmative action to accelerate de facto equality and, implicitly, to compensate for past discrimination. A look at some of the comments of supporters of the decision after it was handed down indicates that they often read it as remedying discrimination, as for example when Charles Schumer objected to criticism of the decision by asking, “How can overcoming racial discrimination be seen as discrimination against white people?” For more on this and other twists and turns of this tortured decision, see Lawrence Auster, “Grutter–a Revolutionary Decision That Must Not Stand,” published in Ward Connerly’s newsletter and also at Frontpage.