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1979 Wash. U. L. Q. 147 (1979)
The Disease as Cure: In Order to Get beyond Racism, We Must First Take Account of Race

handle is hein.journals/walq1979 and id is 159 raw text is: COMMENTARY
THE DISEASE AS CURE:
In order to get beyond racism, we must first
take account of race.*
ANTONIN SCALIA**
As you know, every panel needs an anti-hero, and I fill that role on
this one. I have grave doubts about the wisdom of where we are going
in affirmative action, and in equal protection generally. I frankly find
this area an embarrassment to teach. Here, as in some other fields of
constitutional law, it is increasingly difficult to pretend to one's students
that the decisions of the Supreme Court are tied together by threads of
logic and analysis-as opposed to what seems to be the fact that the
decisions of each of the Justices on the Court are tied together by
threads of social preference and predisposition. Frankly, I don't have it
in me to play the game of distinguishing and reconciling the cases in
this utterly confused field.
The chaos in which we find ourselves is well-enough exemplified by
Bakkel itself. Four of the Justices tell us that both the Constitution
and Title VI permit racial preference; four of the Justices tell us that
whatever the Constitution may permit, Title VI forbids it. And the law
of the land, pronounced by the one remaining Justice, apparently is
that Title VI is no different from the Constitution; governmental racial
distinctions of any sort are odious to a free people and their validity
inherently suspect; they must pass the most exacting judicial exami-
nation, and can only be justified by a compelling state interest. We
later learn that the compelling interest at issue in Bakke is the enor-
mously important goal of assuring that in medical school-where we
are dealing with students in an age range of twenty-two to twenty-eight,
or in Bakke's case, thirty-three to thirty-nine-we will expose these im-
pressionable youngsters to a great diversity of people. We want them
* Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 407 (Blackmun, J., concurring in the
judgmcnt in part and dissenting in part).
** Professor of Law, University of Chicago. A.B., 1957, Georgetown University; LL.B.,
t960, Harvard University.
1. Regents of Univ. of Cal. v. Bakke, 438 U.S. 265 (1978).

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