Man Without Qualities

Wednesday, April 30, 2003

Epstein Visits Michigan

Richard Epstein is a considerable intellectual force on what is often considered to be the conservative side of many political debates. But in the case of the Michigan affirmative action case now pending before the Supreme Court he seems to come down on the side of defending and allowing the existing affirmative action programs of that university - or something close to them.

I’m not convinced by Professor Epstein in this case. He argues that public universities should be treated as private universities - which enjoy "free association" rights which permit them to discriminate racially and in other ways far more questionable for public institutions.

But I don't exactly see why Professor Epstein's argument doesn't lead to the conclusion that the federal Constitution should be read as allowing the University of Mississippi, for example, to exclude African-Americans. Is the entire Civil Rights movement supposed to become a big "never mind" to the extent it involved the individual Constitutional rights of African Americans to attend public universities? Professor Epstein's argument seems to lead to that conclusion.

Worse, are public universities also to be allowed to suppress free speech rights guaranteed by the First Amendment? The Constitution does not prohibit Harvard from doing that - but the University of Michigan is bound by the First Amendment in ways a private university such as Harvard need not even consider - and that's a good thing.

A curiously weak showing from a general intellectual powerhouse.

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