James Taranto writes:
A different view was expressed at the Supreme Court yesterday by Shanta Driver, lawyer for the unwieldily named Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality by Any Means Necessary, or BAMN. In Schuette v. BAMN, the organization is challenging a provision of Amendment 2, a Michigan ballot initiative, that bans racial discrimination at the University of Michigan and other public institutions of higher education. (The high court has said such discrimination is constitutionally permissible for the purpose of realizing "the educational benefits" of a "diverse student body.")
At the beginning of her oral argument, Driver had this exchange with Justice Antonin Scalia:
Driver: We ask this Court to uphold the Sixth Circuit decision to reaffirm the doctrine that's expressed in Hunter-Seattle, and to bring the 14th Amendment back to its original purpose and meaning, which is to protect minority rights against a white majority, which did not occur in this case.
Scalia: My goodness, I thought we've--we've held that the 14th Amendment protects all races. I mean, that was the argument in the early years, that it protected only--only the blacks. But I thought we rejected that. You--you say now that we have to proceed as though its purpose is not to protect whites, only to protect minorities?
Driver: I think it is--it's a measure that's an antidiscrimination measure.
Driver: And it's a measure in which the question of discrimination is determined not just by--by power, by who has privilege in this society, and those minorities that are oppressed, be they religious or racial, need protection from a more privileged majority.
Scalia: And unless that exists, the 14th Amendment is not violated; is that right? So if you have a banding together of various minority groups who discriminate against--against whites, that's okay?
Driver: I think that--
Scalia: Do you have any case of ours that propounds that view of the 14th Amendment, that it protects only minorities? Any case?
Driver: No case of yours.
As this exchange makes clear, Driver's view of the 14th Amendment is a highly eccentric one--one that, as she acknowledges at the end, is without support in the court's precedents. Even if the justices were to rule in BAMN's favor--an outcome we think unlikely, for reasons we explained in a July 2011 column--they would not need to adopt Driver's view that "equal protection of the laws" applies only to members of certain favored races.
This is a principle that is firmly embedded in academia. It's the reason that the there are colleges that exclude Christianity from the defintion of those entitled to protection from harassment and discrmination.
And this is being argued in front of the Supreme Court.