Friday, January 17, 2003
John Rosenberg at Discriminations has the analsys I was looking for (and thus beat the esteemed Volokh Conspiracy et al:
Rather than argue, as conservatives had hoped, that diversity can never justify racial discrimination, the two briefs argue that the Michigan policies fail constitutional muster because they did not sufficiently explore alternative diversity enhancing policies before adopting race-based preferences. In addition, both briefs maintained that both Michigan's undergraduate and law school admissions policies operated as a de facto quota.
The good news is that both briefs are workmanlike, competetent documents that present a compelling argument that may well win. The bad news is that, if so, they will not win very much. If Michigan loses on the terms laid out in the administration briefs, it will be harder for other schools to justify race-based preferences. But they will have been given enough room to try, and try, and try, and try they will.
It will be interesting to see if administration's failure to drive a stake through the heart of racial preference at least earns it any less animosity from Hispanics, blacks, and liberals. I doubt it.
He also provided links to the two briefs--they're PDFs, so beware:
the law school brief
the undergrad school brief
Discriminations got them from How Appealing, which has numerous links and appears to be first out of the gate at 12:15 am last night, with the possible exception of the Associated Press. But give Rosenberg credit--he was blogging until nearly 3 a.m.!