There aren’t plaintiffs in these cases in no small part because those displaced by racial preferences lack either the courage, the conviction or, perhaps, both. Certainly the pro bono talent and willingness is there.

In Parents Involved in Community Schools v Seattle School District, the plaintiffs were parents of high school students such as Andy Meeks (Andy is referenced by name in Justice Roberts’ plurality opinion). They had the courage of their convictions and challenged the racial assignment policy of the Seattle School District, where I taught for 36 years. The plaintiffs in Briggs and its companion cases, of course, risked much more than Andy did ( He was denied a place in Ballard High School’s Technology Academy because he is white): they risked life, limb, and livelihood. Andy, was able to leave Seattle and enroll in a private school a few blocks from my home in Mercer Island, a suburb of Seattle.

Today, apparently, there is less resolve when it comes to those opposed to racial preferences in university admissions “walking the talk” of Justice Roberts’ oft-quoted “if we want to end racial discrimination, we must stop discriminating on the basis of race. That would require “stepping up to the plate” and becoming plaintiffs. Perhaps, too, the NAACP of old was a more effective advocate and strategist than those organizations fighting racial preferences today

There aren’t, no doubt, because those displaced by racial preferences lack either the courage, the conviction or,perhaps, both.

In Parents Involved in Community Schools v Seattle School District, the plaintiffs were parents of high school students such as Andy Meeks (Andy is referenced by name in Justice Roberts’ plurality opinion). They had the courage of their convictions and challenged the racial assignment policy of the Seattle School District, where I taught for 36 years. The plaintiffs in Briggs and its companion cases, of course, risked much more than Andy did ( He was denied a place in Ballard High School’s Technology Academy because he is white): they risked life, limb, and livelihood. Andy, was able to leave Seattle and enroll in a private school a few blocks from my home in Mercer Island, a suburb of Seattle.

Today, apparently, there is less resolve when it comes to those opposed to racial preferences in university admissions “walking the talk” of Justice Roberts’ oft-quoted “if we want to end racial discrimination, we must stop discriminating on the basis of race. That would require “stepping up to the plate” and becoming plaintiffs. Perhaps, too, the NAACP of old was a more effective advocate and strategist than those organizations fighting racial preferences today.

Apparently there is less resolve when it comes to those opposed to racial preferences in university and law school admissions “walking the talk” of Justice Roberts’ oft-quoted “if we want to end racial discrimination, we must stop discriminating on the basis of race” by stepping up to the plate and becoming plaintiffs (and staying the course). Perhaps, too, the NAACP of old was strategically more effective advocaste thasn those organizations fighting racial preferences today.

What I now understand him to be saying is that somehow advocates of remedial action to mitigate the damages caused by illegal discrimination are urging a “turnabout is fair play” approach in which blacks would have an opportunity to discriminate, which would be unfair to latinos and asians who did not discriminate against them. But this is a straw man, nobody has suggested this except Ionesco.

If the problem is that students cannot compete on an equal playing field because the elite admissions policies of certain universities have a discriminatory effect against minorities in the first place, the university can simply choose students from an overall lower level of qualification.

In addition, how do we know that the motives behind affirmative action policies are actually benign? Couldn’t they also act as fronts for racially selfish opportunists? If I had a racially selfish motive, I would love to run an affirmative action program because I could disguise my true motives under the guise of “diversity”.

It was not easy in 1950, either – for even more obvious reasons: Thurgood Marshall and his NAACP colleagues knew that the plaintiffs they sought to challenge school segregation in places like Clarendon County, South Carolina would be risking both their livelihoods and their lives by becoming plaintiffs in Briggs v Elliott. Indeed, both Harry Briggs and his wife Liza lost their jobs, and Levi Pearson, another plaintiff, was unable to sell timber from his land or get credit.

So, yes, there are costs to becoming a plaintiff in a racially-charged dispute. Marco DeFunis, the plaintiff in DeFunis v Odegaard (1974),the first preferential admissions case to reach the Court, was a student at the high school where I taught for 36 years. Marco was ordered admitted to the University of Washington School of Law while his case proceeded, and was about to graduate when the Court dismissed his case as moot (though Justice Douglas wrote an impassioned dissent opposing the idea of racial preferences in admissions). DeFunis paid a price: he was shunned by minority students throughout his three years at the law school. But he didn’t lose his job, or his land, or fear for his life. He went on to practice law until his untimely death in 2002.

And the NAACP was willing to do “unremunerative” work in the cause of justice. If the dearth of plaintiffs is due to their lack of courage, and the failure of those in the legal community who see race-based preferences as an injustice contrary to our constitutional ideals to represent them pro bono, then so be it.

Moreover, while Mr. Clegg hopes that cert will be granted in Fisher v Texas, perhaps he and his allies should have seen to it that this rare chance to re-visit Grutter wasn’t replete with “vehicle problems” similar to Mr. DeFunis’s: inter alia, Ms. Fisher will have graduated by the time the case has been decided,her co-plaintiff withdrew from the litigation, and the litigation was not framed as a class action.

Clegg’s position that Latinos were not subject to slavery is like saying that czarist Russia was not a slave society, it was a feudal society with serfs. Just because latino farm labor was generally managed on contractual basis, it does not mean that the laws did not show unchallengable favortism toward the contractor, that laborers were permitted to live permanently where they worked, that contractors or farmers were required to provide basic shelter or sanitation or health care, or that laborers were worked any easier than slaves. They just weren’t chattel, which meant that the farmer had no responsibility for them in their old age.

Martinez is indeed still pending, but the reaffirmation of Coleman in Maples makes it unlikely that any sweeping change is coming in that case.