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[ 160 ] 6 Competing Conceptions of Equality A great deal of learning occurs informally. It occurs through interactions among students of both sexes; of different races, religions, and backgrounds; who come from cities and rural areas, from various states and countries; who have a wide variety of interests, talents, and perspectives; and who are able, directly or indirectly, to learn from their differences and to stimulate one another to reexamine even their most deeply held assumptions about themselves and their world. As a wise graduate of ours once observed in commenting on this aspect of the educational process, “People do not learn very much when they are surrounded only by the likes of themselves.” . . . In the nature of things, it is hard to know how, and when, and even if, this informal learning through diversity actually occurs. It does not occur for everyone. For many, however, the unplanned, casual encounters with roommates, fellow sufferers in an organic chemistry class, student workers in the library, teammates on a basketball squad, or other participants in class affairs or student government can be subtle and yet powerful sources of improved understanding and personal growth. —Justice Lewis F. Powell, writing in Regents of the University of California v. Bakke (1978), quoting the president of Princeton University Government cannot make us equal; it can only recognize, respect, and protect us as equal before the law. That these programs may have been motivated, in part, by good intentions cannot provide refuge from the principle that under our Constitution, the government may not make distinctions on the basis of race. As far as the Constitution is concerned, it is irrelevant whether a government’s racial classifications are Competing Conceptions of Equality [ 161 ] drawn by those who wish to oppress a race or by those who have a sincere desire to help those thought to be disadvantaged . There can be no doubt that the paternalism that appears to lie at the heart of this program is at war with the principle of inherent equality that underlies and infuses our Constitution. Theseprogramsnotonlyraisegraveconstitutionalquestions, theyalsounderminethemoralbasisoftheequalprotectionprinciple . Purchased at the price of immeasurable human suffering, the equal protection principle reflects our Nation’s understanding that such classifications ultimately have a destructive impact ontheindividualandoursociety. . . .Therecanbenodoubtthat racial paternalism and its unintended consequences can be as poisonous and pernicious as any other form of discrimination. So-called “benign” discrimination teaches many that because of chronic and apparently immutable handicaps, minorities cannot compete with them without their patronizing indulgence. Inevitably, such programs engender attitudes of superiority or, alternatively,provokeresentmentamongthosewhobelievethat they have been wronged by the government’s use of race. These programs stamp minorities with a badge of inferiority and may causethemtodevelopdependenciesortoadoptanattitudethat theyare“entitled”topreferences. . . . In my mind, government-sponsored racial discrimination based on benign prejudice is just as noxious as discrimination inspired by malicious prejudice. In each instance, it is racial discrimination, plain and simple. —Justice Clarence Thomas, writing in Adarand Constructors Inc. v. Peña (1995) Duke Lacrosse When four members of the Duke University lacrosse team, all white students , were accused of raping an African American stripper hired by team members to perform at an off-campus party, Duke and the surrounding Competing Conceptions of Equality [ 162 ] community in Durham, North Carolina, were swept into the vortex of a perfect storm. For months, national discourse over the Duke lacrosse team allegations were filled with sound and fury over universities allegedly hijacked by runaway athletic programs, seething racial and class divisions , and privilege. With many members of its faculty urging it on, Duke suspended the students and canceled the lacrosse season. The allegations were ultimately exposed as a fabrication, driven by an unscrupulous prosecutor playing to racial divisions and class distinctions for political gain. The lacrosse players, cleared of wrongdoing, sued the University.1 What happened at Duke was connected in the constitutional unconscious to deeper, more primal American conflicts over race, and even more profoundly, over the meaning of our constitutional commitment to the “equal protection of the laws.” With the election of President Barack Obama, the nation is being invited to enter a new “post-racial” period. But what will being “post-racial” mean for society at large, and for American higher education in particular? Process and Outcome Equality The nation continues to struggle between two competing conceptions of the meaning of “equality”: “process equality” and “outcome equality .”2 Process equality is exemplified by the notion that our Constitution should be “colorblind.” This approach appeals to American faith in the marketplace, to social Darwinism...


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