The Washington Post offers an editorial today explaining why the Supreme Court should let the affirmative action policy in Michigan stand. The editorial has something to contribute when it is making an argument based on public policy, but the moment it crosses the divide into law, it is laughable. Take, for instance, the Posts definition of the question before the court:
But the question for the court is not whether preference programs are a good idea or whether their social costs outweigh their benefits. It is whether they so violate the basic ground rules of American democracy that they should be removed from the policymaking table altogether.
I have to admit that I dont know what they mean by "violate the basic ground rules of American democracy," but an easier way of saying this would have been: violates the Equal Protection Clause of the Constitution. But that is difficult for them to say, because the very words betray the legitimacy of treating people differently on account of race--even if this is done with the best of intentions.
But perhaps most telling is the last paragraph, which reads best if you compare it to the words of Orval Faubus or George Wallace:
In reality, diversity in higher education is so widely demanded that the political system will find ways of making it happen -- using whatever surrogates for race and ethnicity it can -- even if the legal system forbids the most obvious means of achieving it. When the courts blocked affirmative action in Texas, the Legislature responded by mandating that the university system admit any student who graduated in the top 10 percent of his or her high school class. This relatively crude instrument is nominally race-blind and well inoculated against legal challenge.
In other words, we should permit naked racial preferences, because otherwise states will devise more subtle and less effective racial preferences. This is precisely the theory that was used during desegregation to maintain segregation in the South, and the Supreme Court was nonetheless capable of striking down the more subtle forms of discrimination. Contrary to the Posts assertion, Supreme Court precedent suggests that a facially neutral program such as the Texas plan passed with discriminatory intent (i.e., maintaining diversity) following a judicial finding of discrimination (i.e., the Hopwood decision) is on shaky legal ground indeed.