A Stitch in Haste

This one might only be for the lawyers.

Isn't it interesting that Chief Justice Roberts was able to so casually dismiss the standing challenge in the race-based cases, yet hung his entire hat on the lack of standing in Hein v. FFRF (the faith-based initiatives case)?

Race-based admissions:

The group's members have children in the district's elementary, middle, and high schools, and the complaint sought declaratory and injunctive relief on behalf of [group] members whose elementary and middle school children may be "denied admission to the high schools of their choice when they apply for those schools in the future." The fact that it is possible that children of group members will not be denied admission to a school based on their race -- because they choose an undersubscribed school or an oversubscribed school in which their race is an advantage -- does not eliminate the injury claimed.

Let's rewrite that passage:

The group's members pay federal taxes that underwrite the federal government's legislative, judicial and executive branches, and the complaint sought declaratory and injunctive relief on behalf of group members whose taxes may be used in violation of the Establishment Clause. The fact that it is possible that group members will not be denied their First Amendment right of freedom from religion -- because their taxes are being unconstitutionally allocated by one branch rather than another -- does not eliminate the injury claimed.

Yet that was exactly the reasoning rejected in Hein. Go figure.

I suppose Roberts is channeling Emerson: Apparently to him a foolish consistency really is the hobgoblin of little minds.

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As for the cases themselves, I don't know when or even if I will slog through all 185 pages. My main question, which I will seek to answer later, is as follows:

If race-based preferences are unconstitutional in the context of a school district where every student is guaranteed a seat somewhere in the district, just not their first choice (i.e., a student may be denied, based in part on race, admission to "a school," but not to "the schools"), then how can such preferences be constitutional if they, based in part on race, deny access altogether (i.e., when "a school" and "the schools" are the same thing)? How can the lesser denial be unconstitutional but the greater denial not be? How can Grutter v. Bollinger, 539 US 306 (2003) which said as much in the context of raced-based preferences in law school admissions, possibly still be good law?

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Meanwhile, my basic thesis on academia is unchanged:

I accept the premise that universal elementary and secondary education, properly crafted, is a legitimate public good. The positive externalities are so significant as to make taxation, properly crafted, to underwrite it inoffensive from a libertarian perspective.

However, that does not automatically mean that basic education should be publicly provided, but only that it should be publicly financed. Stated differently: Vouchers, vouchers, vouchers!

Post-secondary education, however, generates far fewer, if any, positive externalities. Colleges and universities should, therefore, be neither publicly provided nor publicly financed. The notion, meanwhile, of taxpayers subsidizing graduate and professional programs -- such as law schools and business schools -- is facially absurd. If you want to go to law school, then do so on your own dime.