On the Most Recent SCOTUS Affirmative Action Case or What Does Justice Sotomayor Have Against Asian-Americans?

I don’t have much to say about the Schuette case other than to point you to this short analysis by Professor David Bernstein of George Mason (blogging at the Volokh Conspiracy).  An excerpt:

The Supreme Court’s diversity rationale suggests that the main benefit of achieving a critical mass of minority students through affirmative action preferences is that it improves the education of the non-minority students. If white students benefit from “diversity”-based preferences at least as much as minority students, there is no particular group being disadvantaged by Proposition 2′s ban on such preferences.

If there is no one group that is being disadvantaged, then it follows that there is no equal protection problem.  You’ll have to read the rest of his post to grasp the significance of the title of my post, but  Bernstein’s analysis seems correct to me.

Prof. Bernstein got down to brass tacks a little bit more in the comments:

I don’t believe there is such a thing as “overrepresented” or “underrepresented” unless there is discrimination involved, but if there were such a thing, White Protestants would be “underrepresented” at just about every elite school in the country, with Jews (25% or so at Harvard and Yale College, for example, more than 10x their representation in the popularton at large) and Asians being wildly “overrepresented.” If you want everyone to be evenly represented, just admit you want quotas on Jews and Asians, and be done with it.

Much has been made in some media outlets of Justice Sotomayor’s 58-page dissent.  If, however, her dissent neither addresses the glaring flaws pointed out by Bernstein nor resolves the internal inconsistency of taking a position that would merely disadvantage one minority group in favor of another, it makes little difference whether her dissent is 58 or 158 pages long.


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