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December 07, 2005


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A straightforward argument in favor of affirmative action is that the short-term costs of discriminating against an overwhelmingly dominant majority (like American white men) may be far outweighed by the long-term benefits of affirmative action for traditional victims of discrimination. No one advocates that it should be made permanent; all advocates argue is that we should make a concerted effort to level the playing field, and then transition to pure meritocracy.


I tend to agree with Roach and other like minded persons, such as Ward Connerly on this point. The only way for our society to achieve a true equality is to actually treat people equally. I think that there is an insidious side to affirmative action that has not been mentioned here. That is the degredation of the accomplishements of the truly talented minorities and to a lesser extent women. So long a preference program is in place, the assumption by an outside observer of an accomplished minority or to a lesser extent woman, will be that the program helped that person acieve their goals. While this may not be a big deal in the abstract, when people go out to find a doctor, dentist or lawyer, find out that the person they are considering hiring is from a group that has the benefit of preferences, there is a real concern in the minds of many, justifed or not, that that person is submitting his or her care or business to someone who is not the most qualified because that person needed the boost to even get into qualifying professional programs. I would rather we treat everyone equally so that this signalling problem is eradicated.

As to the Solomon Amendment, I tend to agree with Professor Stone's assessment that there is no basis for a diminution of speech by law schools in being required to allow military recruiters on campus. The fact is, the military complies with applicable law on the matter of discriminating against gays. While I respect the Law School's right to put non-discrimination policies stronger than applicable federal law into place and exclude any potential employers not in compliance with their set criteria, the Law School must also live with the consequences of such decisions. In the case of excluding a business or law firm with hiring practices outside of the policy, the Law School will not likely receive support from such business or law firm. While there are important differeces between private actors and the government, in this case, the government is acting as an employer and a benefactor to the Law School. In short, if the military's legal policy is offensive to the Law School, do not accept the gevernment's money. This, as I understand it, is the point of the Solomon Amendment. If the government conditioned funding on the Law School accepting illegal behavior or waiving Constitutional protections, I believe that the opposite result is warranted. Personally, I do not think this case is even close and will be surprised to see anything but a 9-0 ruling in favor of upholding the Solomon Amendment.


Hard to believe that President Clinton, the favorite of liberals everywhere (though he was not that liberal) adopted the don't ask, don't tell policy.

Frederick Hamilton

Professor Stone,

Would you please now comment on the FAIR lawsuit and the fact that so many theoretically smart law school professors could have gotten the law wrong. A unanimous vote by the Supreme Court with a sting rebuke by the Chief Justice is a pretty significant slap down and calls into question just what all of you must have been thinking in being a part of the lawsuit. Did you not understand the law? Or was this simply a grandstanding frivolous case by law professors who should have known better? The case is over, it is time for you to explain your gross mistaken position in all of this to those of us who don't understand the law as well as you do. Or do you hold the position that a unanimous Supreme Court was out to lunch and simply got it wrong? Please your explanation.

Frederick Hamilton

Professor Stone,

It has been over a week since the 8-0 vote and the single voice opinion (i.e, no I agree but hang on while I parse the decision concurring comments from the other justices) eloquently and cogently delivered by the Chief Justice. When can we expect your response to the decision? Also, why were the 36 high powered law schools (only 26 of which had the fortitude to allow themselves to be identified publicly) so off the mark regarding constitutional law. To be fair, the Third Circuit Court of Appeals got it very wrong also, by a 2-1 vote. Again, would you please explain the difficulty in getting the law right and while you are at it, could you explain why 10 law schools were unwilling to be named publicly as members of FAIR?

Frederick Hamilton

Professor Stone,

I can't put it any better than Professor Banzhaf.

"Opinion: When Law Professors Don't Know the Law

The Supreme Court's unanimous ruling upholding the Solomon amendment, which allows the federal government to deny funds to colleges that don't give military recruiters the same access to their campuses as other employers (The Chronicle, March 6), suggests that many constitutional-law professors should receive failing grades in their own field. Not only were they unable to convince conservative members of the court of their position, but even the most-liberal justices rejected their arguments."

When will you comment? Or more precisely, will you comment?

Frederick Hamilton

Professor Stone,

If you are unwilling to explain why your position on Solomon was rejected 8-0 then maybe Professor Banzhaf is correct; you really don't understand constitutional law very well. There must be someone at the University of Chicago Law School that can explain why you and FAIR got the constitution so wrong. Or at least, acknowledge you knew all along FAIR's position was grossly lacking and you and many other law professors believe in filing frivolous law suits.

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