PROMISES, PROMISES, REDUX. Last night I promised that I would post something on the distinction between the legal and moral arguments against affirmative action. Then I discovered the Grutter briefs online (thanks to How Appealing) and I decided to start posting about those.

Now I'm caught in between two projects, both of which could take the better part of a week to finish. However, I've decided to go ahead and start sketching out what I think the differences between the moral and legal arguments against affirmative action are, and why I think they are important.

This is tentative, meant to suggest as much as it is to persuade. So, please, email me with comments, criticisms and suggestions.

Premise: There is an identifiable and significant difference between legal and moral arguments against affirmative action.

Definition 1: the moral argument against affirmative action centers on the colorblindness principle, as outlined and adroitly defended by Discriminations, among others.

Definition 2: the legal argument against affirmative action arises from an affirmative action policy's inability to meet the strict scrutiny (compelling state interest/narrowly-tailored) test.

Portions of the Argument. Would start something like this . . . in order to argue that the Fourteenth Amendment or the Constitution itself mandates colorblindness, one would have to identify historical, textual, structural, doctrinal, ethical and prudential support. History, with all respect to Judge McConnell, is suspect. The text is ambiguous (what does 'equal protection of the laws mean? does it mean what it did in 1870 or 2003?). Structure isn't particularly useful. The doctrine -- when read from the 1870s forward -- is muddled. And ethics and prudence, the most capacious of the constitutional modalities, just encourage us to fall back to the same sort of moral arguments that we started with.

What got me started thinking about this is Discriminations railing against the "legacy admissions" fallacy -- those supporting affirmative action who argue against its abollition (especially the President's involvement) on the grounds that legacy admissions are just as bad. As a legal matter, John is right, this argument is easy to demolish: race is a protected class, family-history is not. But as a counter to the moral argument against affirmative action the "legacy" charge may have more traction: if the moral issue is about treating people equally and fairly, why tolerate someone receiving preferential treatment based on how much his parents make? I suppose one could argue that racial classifications are more pernicious than familial ones, but since we are arguing morally, and thus freed from the current legal doctrine, those of us supporting affirmative action can respond: well, a classification that reinforces the sorts of social hierarchies that led to these problems in the first place is hardly a more desirable than an attempt to rectify the ongoing injuries of race relations in this country. (To which there are responses, I know. I'm not trying to resolve it all this afternoon).

Is there a connection between the moral and legal arguments against affirmative action? Sure--at some point the Court has to figure out what sorts of things count as "compelling state interests," which might include some sort of moral consideration. Of course, that just leads down another rabbit hole: how does the Court figure out what a compelling state interest is? I remember reading somewhere that it was when the proposed state action violated some "basic constitutional norm." OK, but when has colorblindness ever been a constitutional norm for us? It's been desired by some (many) (most) (all) people, but I can't think of a time where I would saddle it with the weight of a "norm," nor what evidence I could gather in support of that claim. (See text, history, etc. above).

Why (again) is this important? Because supporters of affirmative action are often caught fighting with only half their arsenal. Arguments against affirmative action proceed along two parallel but distinct lines, and in our responses to them we shouldn't feel guilty about responding along the same, i.e., both, lines.

My questions amid the rambling aren't rhetorical, they are real. And I would be the first to admit that this is not "my" area of constitutional law (at least to the extent I have an area). So another plea: tell me what I'm missing, who I should be reading, what I should be considering. And if I've inadvertantly plagarized or reiterated someone else's arguments, I'm sorry.

THE OPENING SALVO.

We have one fundamental contention which we will seek to develop in the course of this argument, and that contention is that no state has any authority under the equal protection clause of the Fourteenth Amendment to use race as a factor in affording educational opportunities among its citizens.

So begins, majestically, the argument-in-chief by the Petitioner in the Grutter case. The problem with this beginning, and with the argument originally, is that rests on platitudes rather than legal analysis.

What do I mean? Consider the paragraph that follows:

No value is more central to the principles of the Nation’s founding than the one that was incorporated into the Constitution through the Equal Protection Clause of the Fourteenth Amendment, the “core purpose” of which is “to do away with all governmentally imposed discrimination based on race.” Palmore v. Sidoti, 466 U.S. 429, 432 (1984).

As nice as it sounds on paper, the notion that equality was the central idea of the Constitution is laughable (as opposed, some argue, to the Revolution itself). The original text Constitution is full of all sorts of inequalities, some thankfully discarded, some that still remain. As for the motives that underlay the Founding, I can’t begin to improve on the words of Thurgood Marshall, who wrote:

“Nor do I find the wisdom, foresight, and sense of justice exhibited by the framers particularly profound. To the contrary, the government they devised was defective from the start, requiring several amendments, a civil war, and momentous social transformation to attain the system of constitution government, and its respect for the individual freedoms and human rights, that we hold as fundamental today. When contemporary Americans cite “The Constitution,” they invoke a concept that is vastly different from what the framers barely began to construct two centuries ago.”

101 Harv. L. Rev. 1 (1987).

The Petitioner, to her credit, acknowledges this in the next sentence,

To be sure, the solemn promise of equality held out by the Fourteenth Amendment is one that has not always been honored.

although I think it would be more honest to replace “not always” with “seldom.” Also, when footnoting that particular statement, the Petitioner cited Abraham Lincoln twice. I think it would be much more honest to acknowledge the contemporary and ongoing nature of this failure.

[Educational diversity's] acceptance as a compelling interest would fundamentally and forever change the meaning of equality under the law in our Nation.

Again a noble sentiment, but one that leads me to wonder: when has the law of our nation fixed the meaning of equality? Or is this a moral argument masquerading as a legal assertion?

Picking on the introduction is a bit cheap: no lawyer, regardless of skill, can resist the temptation to wrap his or her argument in basic constitutional principles. What I meant to show, though, is how easily the moral argument against affirmative action creeps into legal discussions about the issue, and, at the same time, how contentious the assumptions underlying the moral argument might be.

The first substantive section of the Petitioner’s analysis argues that strict scrutiny should be applied to all racial classifications, including the law school’s admissions policy. This means, of course, that to survive challenge the

racial classification must be motivated by a “compelling governmental interest,” and the means employed must be “narrowly tailored” to achieve that interest. City of Richmond v. J.A. Croson Co., 488 U.S. 469, 498-511 (1989).

This is cookbook constitutional law. And, as much as I would like to argue that Croson and Adarand were wrongly decided vis-à-vis the “benign”/”invidious” distinction, for present purposes the applicable law is clear. The appropriate standard is “strict scrutiny,” and the burden lies with the Respondents to show that the policy serves a compelling state interest in a narrowly-tailored manner.

The next sections of the Petitioner’s brief deal with the legal status of the Bakke decision — did Justice Powell’s finding that diversity constitutes a compelling state interest command a majority of the Court? (The Petitioner’s answer is, of course, ‘No.’) The brief then considers whether or not the law school’s policy is “narrowly tailored,” and tags on some arguments about § 1981 and the standard by which the Court of Appeals reviewed the District Court’s findings. (Deciding the case on either of those issues would be like deciding an NFL playoff game on an Oscar performance. Oh, wait.)

I’m not inclined to defend the precedential value of Justice Powell’s Bakke decision, nor the reasoning found in it. (It makes my ears bleed, and I assume that the law school’s briefs will contain a much more competent and thorough discussion).

Also, the question of tailoring —while somewhat ridiculous (what lawyer couldn’t think of a program, in any circumstance that wasn’t more narrowly-tailored?) — is also too fact-driven to be of much interest to me. If the Court accepts the Bush administration’s recommendation and decides the case on tailoring grounds, it will only encourage litigation against every college and university and delay an inevitable showdown. At some point the Court will have to confront the “diversity is or is not compelling” question. Issuing decision after decision on tailoring grounds is the legal equivalent to “you say tomato, I say to-mahto, let’s call the whole thing off.”

The real fight is whether, despite Croson and Adarand, promoting educational diversity is a compelling state interest. I'll try to tackle them next.

PROMISES, PROMISES. I started this blog because I figured that there would be no way that I could allow the government's brief in my school's case go without some serious comment. But I notice that Linda Greenhouse, in the words of John from Discriminations, nailed them "right between their averted eyes."

So, a change in plan. Instead of "fisking" the government's briefs, tomorrow I hope to spend some time working through what I see as important, but not often discussed, differences between the moral case against affirmative action and the legal case against it.

THINGS YOU LEARN FROM EMAIL. In the last twenty four hours I have received some great responses to my request for emails. Someone wanted to offer me low interest rates on refinancing my mortgage (too bad I rent). Another nice fellow offered to reintroduce me to long-lost high school classmates (sorry, but there is a reason why most of them are long-lost). Finally, many, many nice young women offered to share . . . well, you get the point.

Besides the obligatory emails congratulating me on establishing a new Hotmail account (from Hotmail itself) and from Blogger.com congratulating me on starting this blog, I have received no emails.

Maybe I should think about increasing my marketing budget.

Finally, I should note my email address: rule11@hotmail.com. Please send mail. I'm interested in seeing if anyone actually reads this without me marketing it.

There is already lots of extensive analysis and interesting posts on the Eldred case. I know almost nothing about copyright law, although I am interested in the First Amendment aspects of the case. So I probably won't talk about it much, if at all.

It did occur to me, however, that Homer Simpson may have provided the ultimate argument in the petitioner's favor:

"Yes, I do. I believe that famous people have a debt to everyone. If celebrities didn't want people pawing through their garbage and saying they're gay, they shouldn't have tried to express themselves creatively.
***
In closing, you people must realize that the public owns you for life! And when you're dead, you'll all be in commercials, dancing with vacuum cleaners. Thank you, your honor."

Welcome to my blog. As a brief introduction: I know nothing about html and very little about anything else computer-related, so I apologize, profusely and in advance, for problems and msitakes.

I am a young lawyer (just what the world, and its wide web, needs), a graduate of a public law school currently receiving a little publicity. More on that later.

Finally, no opening post would be complete without a nod and a thanks to those digital pioneers, for better and worse.