Lex Anteinternet: Can't win for losing. Supreme Court Strikes Down Affirmative Action.

Lex Anteinternet: Can't win for losing. Supreme Court Strikes Down A...: 

Can't win for losing. Supreme Court Strikes Down Affirmative Action.

For the reasons provided above, the Harvard and UNC admissions programs cannot be reconciled with the guarantees of the Equal Protection Clause. Both programs lack sufficiently focused and measurable objectives warranting the use of race, unavoidably employ race in a negative manner, involve racial stereotyping, and lack meaningful end points. We have never permitted admissions programs to work in that way, and we will not do so today.

At the same time, as all parties agree, nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise. See, e.g., 4 App. in No. 21–707, at 1725– 1726, 1741; Tr. of Oral Arg. in No. 20–1199, at 10. But, despite the dissent’s assertion to the contrary, universities may not simply establish through application essays or other means the regime we hold unlawful today. (A dissenting opinion is generally not the best source of legal advice on how to comply with the majority opinion.) “[W]hat cannot be done directly cannot be done indirectly. The Constitution deals with substance, not shadows,” and the prohibition against racial discrimination is “levelled at the thing,not the name.” Cummings v. Missouri, 4 Wall. 277, 325 (1867). A benefit to a student who overcame racial discrimination, for example, must be tied to that student’s courage and determination. Or a benefit to a student whose heritage or culture motivated him or her to assume a leadership role or attain a particular goal must be tied to that student’s unique ability to contribute to the university. In other words, the student must be treated based on his or her experiences as an individual—not on the basis of race.

Many universities have for too long done just the opposite. And in doing so, they have concluded, wrongly, that the touchstone of an individual’s identity is not challenges bested, skills built, or lessons learned but the color of their skin. Our constitutional history does not tolerate that choice.

The judgments of the Court of Appeals for the First Circuit and of the District Court for the Middle District of North Carolina are reversed.

It is so ordered.

After a series of decisions on cases which liberal pundits were in self afflicted angst about in which the Court didn't realize their fears, the Court finally did realize one and struck down affirmative action admission into universities, something it warned it would do 25 years ago.

The reason is simple. Race based admission is clearly violative of US law and the equal protection clause. That was always known, with the Court allowing this exception in order to attempt to redress prior racism.  As noted, it had already stated there was a day when this would end.  The Court had been signalling that it would do this for years.

Indeed, while not the main point in this entry, it can't help be noted that when the Court preserves a policy like this one, which it did last week with the also race based Indian Child Welfare Act, liberals are pretty much mute on it.  There are no howls of protest from anyone, but no accolades either.  Political liberals received two (expected, in reality) victories from the Court in two weeks that they'd been all in a lather regarding. They seemed almost disappointed to have nothing to complain about, until this case, which gave them one.

Predictably, the left/Democrats reacted as if this is a disaster.  It isn't.  Joe Biden instantly reacted.  Michele Obama, who has a much better basis to react, also made a statement, pointing out that she was a beneficiary of the policy, which she was.  That's fine, but that doesn't mean that the policy needed to be preserved in perpetuity.

At some point, it's worth noting, these policies become unfair in and of themselves.  Not instantly, but over time, when they've redressed what they were designed to.  The question is when, and where.  A good argument could be made, for example, that as for the nation's traditionally largest minority, African Americans, this policy had run its course.  In regard to Native Americans?  Not so much.

Critics will point out that poverty and all the ills that accompany it still afflict African Americans at disproportionate levels, and that's true. The question then becomes why these policies, which have helped, don't seem to be able to bridge the final gap.  A whole series of uncomfortable issues are then raised, which the right and the left will turn a blind eye to. For one thing, immigration disproportionately hurts African Americans, which they are well aware of.  Social programs that accidentally encouraged the break-up of families and single parenthood hit blacks first, and then spread to whites, helping to accidentally severely damage American family structures and cause poverty.  Due to the Civil Rights movement, African Americans became a Democratic base, which was in turn abandoned by the Democrats much like Hard Hat Democrats were, leaving them politically disenfranchised.  Black membership in the GOP has only recently increased (although it notably has), as the black middle class and traditionally socially conservative black community has migrated towards it, but that migration was severely hindered by the legacy of Reagan's Southern Strategy, which brought Southern (and Rust Belt) Democrats into the party and with it populism and closeted racism.

While the left will howl in agony on this decision, it won't really do anything that isn't solidly grounded in the 1960s, and 70s, and for that matter probably moribund, about the ongoing systemic problems.  Pundits who are in favor of institutionalizing every child during the day will come out mad, but they won't dare suggest that immigrants take African American entry level jobs.  Nobody is going to suggest taking a second look at social programs that encourage women of all races to marry the government and fathers to abandon their offspring, something that Tip O'Neill, a Democrat, noted in regard to the African American family before it spread to the white family.  The usual suspects will have the usual solutions and the usual complaints, all of which aren't working to push a determinative solution to this set of problems.

Hardly noted, yet, we should note here, is that this decision, just like Obergefell and Heller, will have a longer reach than people now seem to note.  If college affirmative action is illegal, then similar race based programs (save for ones involving Native Americans, who are subject to the Indian Commerce Clause) are as well. And maybe so are gender based ones, including ones that take into account the ever expanding phony categories of genders that progressive add to every day.  In other words, if programs that favor minority admission into university are invalid, probably Federal Government policies that favor women owned companies over others are as well.

Indeed, they should be.

Societies have an obligation to work towards equality before the law, and before society, for all.  But the essence of working on a problem is solving it.  The subject policy was successful for a long time, but this institutionalized favoritism was no longer working to a large degree, and for that matter, in some instances, impacting others simply because of their race.  It's not 1963, 1973, or 1983 any longer.  New thoughts on old problems should be applied.

Some of those new thoughts, frankly, should be to what extent must we continue to have a 1883 view of the country as if it has vast unpopulated domains to settle that it needs to import to fill.  Another might be, however, that American society really has fundamentally changed on race even within the last 20 years.  While racism remains, and the Obama and Trump eras seem to have boiled it back up, for different reasons, a lot of street level racism really is gone.  For one thing, seeing multiracial couples with multiracial children no longer causes anyone to bat an eye anymore, and that wasn't true as recently as 20 years ago.  We may be a lot further down this road than anyone suspects.