I happened to get a chance to read the recent US Supreme Court case which finds affirmative action marginally acceptable there. The dissent of Justice Ruth Ginsburg struck me as extremely well-argued: she found a much broader basis for affirmative action than did the majority.

She starts by saying that you cannot treat positive and burdensome racial classifications as identical:

quote:

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But the Court once again maintains that the same standard of review controls judicial inspection of all official race classifications. This insistence on “consistency,” would be fitting were our Nation free of the vestiges of rank discrimination long reinforced by law. But we are not far distant from an overtly discriminatory past, and the effects of centuries of law-sanctioned inequality remain painfully evident in our communities and schools.

In the wake “of a system of racial caste only recently ended,” large disparities endure. Unemployment, poverty, and access to health care vary disproportionately by race. Neighborhoods and schools remain racially divided. African-American and Hispanic children are all too often educated in poverty-stricken and underperforming institutions. Adult African-Americans and Hispanics generally earn less than whites with equivalent levels of education. Equally credentialed job applicants receive different receptions depending on their race. Irrational prejudice is still encountered in real estate markets and consumer transactions. Bias both conscious and unconscious, reflecting traditional and unexamined habits of thought, keeps up barriers that must come down if equal opportunity and nondiscrimination are ever genuinely to become this country’s law and practice.
The Constitution instructs all who act for the government that they may not “deny to any person … the equal protection of the laws.” Amendment 14, section 1. In implementing this equality instruction, as I see it, government decisionmakers may properly distinguish between policies of exclusion and inclusion. Actions designed to burden groups long denied full citizenship stature are not sensibly ranked with measures taken to hasten the day when entrenched discrimination and its after effects have been extirpated. To say that two centuries of struggle for the most basic of civil rights have been mostly about freedom from racial categorization rather than freedom from racial oppression is to trivialize the lives and deaths of those who have suffered under racism. To pretend … that the issue presented in Bakke, (affirmative action in universities) 438 U.S. 265 (1978) was the same as the issue in Brown v. Board of Education, is to pretend that history never happened and that the present doesn’t exist.”

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(I have taken out the many footnotes and references to caselaw so that the argument can be read without clutter. The footnotes there are worth checking out, too.)