David Kennedy wrote this fascinating article in the Merc on Sunday about affirmative action. So you know, AA is without question constitutionally dubious. It goes directly against the 14th Amendment’s equal protection clause. There’s no way around it. I’m not saying AA is bad. I’m just saying it’s constitutionally dubious. I think having all teachers be Christian would be great, but that would be unconstitutional.
Anyway, the recent decision was really interesting. Basically, the justification for AA has been we need to bend the 14th Amendment temporarily for a good purpose. Not sure about Bakke but the recent decision confirmed the temporary nature of AA, with O’Connor saying in 25 years, it should no longer be necessary.
Kennedy points out something interesting though. In the past, AA was described as being kinda like reparations for past wrongs, a measure of correction for America’s racist past. But in the recent decision, the justification for AA was framed in terms of diversity, that that’s a valid consideration.
And that’s really interesting. Because by framing it like that, that makes it harder for it to be a temporary thing. Reparations might be temporary in nature, but diversity isn’t. As America’s demographics change, it will only be a bigger concern. So this shift in justifying AA, moving to diversity, is really interesting. Will AA ever end? We’ll see, we’ll see.