Walter Dellinger and Dahlia Lithwick

When Logic Fails
An email conversation about the news of the day.
June 25 2003 8:44 AM

Walter Dellinger and Dahlia Lithwick

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Good lord, Dahlia,

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Your last posting left me speechless for an entire day. It was extraordinary—biting, witty, and brilliant.

And also profoundly wrong.

First of all, even though you favor affirmative action, you believe that the "diversity" rationale is a sham and a pretense. I truly believe in it, though it is hard to convince a skeptic. But come walk with me down memory lane.

There is a long hallway at Duke Law School that has a picture of every graduating class, arranged by year. In the pictures from the '50s and into the '60s, class after class contains about 100 eerily identical-looking students: about 100 young white males with crew cuts, white shirts, and narrow ties. While I realize there must be significant variety among those young men, I can't help but think that it (literally) pales by comparison to the rich variety of experiences that are reflected in the classes beginning in the '70s, where the photos turn to Technicolor and include an array of older students, as well as more and more women, African-Americans, and, increasingly, a number of students from a wider and wider array of ethnic backgrounds.

To Justice Thomas, my reference to the class pictures would count as evidence that "racial aesthetics" is what universities are actually seeking. All I can say in response is that the vibrancy of the more recent class pictures is reflected in the classroom. Being cognizant of race in order to produce more racial diversity really does advance the educational aims of these institutions, just as having a racially diverse group of leaders advances the actual operational goals of the military, law enforcement, and metropolitan newspapers.

You drolly ask: If diversity is so hellfire important, why just diversity for the particular racial and ethnic groups that are usually included in college affirmative action plans? Why not seek diversity by including cellists and croupiers, you ask, or Scots and Canadians? Your premise seems backward. We do in fact admit people because they are cellists. And many elite institutions admit Southerners whose grades would not have gotten them admitted had they been from New York. I know. As a redneck admitted to Yale Law School, I was a beneficiary of affirmative action. The opponents of affirmative action are the ones who would single out race for separate treatment—making it the only culturally relevant, strongly shaping factor that would be excluded from the factors that could be considered in shaping a class.

You and Michael Kinsley question the intellectual rigor of O'Connor's position upholding Michigan Law School's strong use of race as a factor while condemning the college's point system. (My now-regretted arguments made as a young law professor questioning the logic of Justice Powell's opinion in Bakke were almost exactly those posted on Slate by the usually reliable Kinsley.) The distinction between the two programs is logically defensible, if for no other reason than the fact I noted on Monday—the undergraduate point system ultimately requires a determination by the state as to what race a person is, and the law school program does not.

The line between the programs is admittedly thin. But because all governmental uses of race are problematic, distinctions are necessarily fine. As Hendrik Hertzberg wrote recently in The New Yorker, "[A]ffirmative action is strong medicine, and, as with any strong medicine, no great distance separates the therapeutic dose from the toxic one."

When it comes to an issue like this, moreover, wise Supreme Court adjudication isn't the same as excelling at Logical Puzzles 101. No mathematical exercise will produce a "right answer" to the question of what uses of race are consistent with the 14th Amendment's brief command that no state shall "deny to any person … the Equal Protection of the Laws." You can't find the answer by leading a scientific expedition deep into the center of the second "o" in "Protection." The answer isn't buried there.

On an issue like this, the most logical answers are not necessarily the right ones. Justice Scalia is right when he says that if you want a consistent "principled" rule for judging affirmative action, choose either "always OK" or "never permitted." But in my view neither choice is wise, and neither is compelled by the Constitution.

That's it. I'm off to breakfast at Sutton's Drugstore in Chapel Hill. I want to find out what the folks at the counter think should happen tomorrow when the court decides the Texas homosexual sodomy case. I'll let you know.

Walter

Walter Dellinger is a professor of law (on leave) at Duke University and a partner in the appellate practice at O’Melveny & Myers in Washington, D.C.

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