Monday, June 23, 2003

Preferences: Volokh is, as expected, covering the Supreme Court decisions on race based preferences. And in fine fashion, I'd say. This analysis of the term "discrimination" is important:
Incidentally, though some defenders of race preferences dislike the use of the term "discrimination" in this context, that's exactly what it is. As the Supreme Court has held, City of Los Angeles Dep't of Water & Power v. Manhart, 435 U.S. 702, 711 (1978) (opinion of Justice Stevens, joined by, among others, Justice Marshall), the "simple test" for what "constitutes discrimination" is whether a program "treats a person in a manner which but for that person's sex would be different" (in the context of sex discrimination), and the same, it seems to me, is equally true for race, religion, national origin, and so on. And "considering race as" even "one modest factor" in decisionmaking necessarily treats some people "in a manner which but for that person's [race] would be different."
There's so much more to read from him, especially now, as he's about to dig in to the ruling on the Child Internet Protection Act.

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