Romer and Michigan

[Kermit Roosevelt]

I accept the legitimacy of these feelings.  I wonder, though, why you don't feel equally stigmatized by preferences awarded on the basis of geography or alumni child status.  That is, if the complaint about racial preferences is that they're unfair because they reward people for characteristics unrelated to merit, I agree, but I note that we have lots of other preferences that do the same thing.  And many of them--like preferences for alumni children--tend to reward those who are already advantaged.  Why is it that racial preferences are so uniquely objectionable?  

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From: conlawprof-bounces at lists.ucla.edu on behalf of Rick Duncan
Sent: Fri 11/10/2006 9:09 AM
To: CONLAWPROF at lists.ucla.edu
Subject: Romer and Michigan


 I really don't see how Romer can be used to strike down the Michigan  initiative. In Romer, Colorado Am 2 prohibited laws protecting persons against sexual orientation discrimination. The Michigan initiative is not an anti-antidiscrimination law; it affirms the principle of nondiscrimination and affirms the idea that racial classifications are suspect. 
 
The Michigan initiative does not classify on the basis of race (as Colorado Am 2 classified on the basis of sexual orientation). Indeed, it forbids the state from classifying on the basis of race when selecting persons for state-created benefits and opportunities.
 
On a personal note, let me respond to the notion that affirmative action does not harm lower-income whites. I still feel the stigma of being denied opportunities because of my race. And I am talking about opportunities, not necessarily getting the prize. 
 
My mother has a 5th grade education and grew up on welfare in a single-parent family. My father barely got through high school, fought for his country (he was at Pearl Harbor when it was attacked) and worked in construction his entire working life. And it still amazes me (and it still hurts me) that elite law schools gave racial preferences to minorities from privileged families and denied me an equal opportunity to compete without regard to my race. Even after getting admitted to Cornell Law School and making law review, I had to endure the stigma of being denied scholarship opportunities--as I recall,one full scholarship was awarded to a classmate, a racial minority, who came from a home in which both his mother and father were medical doctors--solely on the basis of my "privileged" racial heritage.
 
Maybe I would not have gotten that scholarship anyway, but I would have liked the opportunity to be considered for it on the merits. Equality is not about getting admitted or getting a scholarship; it is about having an equal opportunity--without regard to race or ethnicity--to compete for the prize.
 
I got a great education at Cornell and have done very well since; but I still feel the stigma of being treated as a second class citizen by my law shool on the basis of my race. I don't donate money to Cornell and I don't attend class reunions. And it still hurts that I was denied an equal opportunity by my law school "community."
 
As a parent, it hurts me to realize that there are opportunities my children will be denied solely on the basis of their race. Racial preferences are poison. And they hurt all members of the excluded racial groups, because they deny the American dream of an an opportunity to compete without regard to race. 
 
I think that is probably what Jennifer Gratz was feeling. It is what a lot of lower income white students feel, even if they are often afraid to speak out in the classroom when AA is being discussed.
 
Rick Duncan





Rick Duncan 
Welpton Professor of Law 
University of Nebraska College of Law 
Lincoln, NE 68583-0902
 

"It's a funny thing about us human beings: not many of us doubt God's existence and then start sinning. Most of us sin and then start doubting His existence."  --J. Budziszewski (The Revenge of Conscience)
 
"Once again the ancient maxim is vindicated, that the perversion of the best is the worst." -- Id.

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