I will let you get to my analysis of the affirmative action ruling in a moment, but the Supreme Court just handed down two massively important decisions, one of which bears directly on the question of conscience and freedom that I wrote about in yesterday’s blog (see Denying Reality: The Tyranny of Gender-Inclusive Language).
In the first decision, the Supreme Court ruled 6-3 that President Biden’s program aiming to enable eligible borrowers to eliminate up to 20,000 dollars in debt is unconstitutional. The former Vice President’s program, which carried an estimated cost exceeding 400 billion dollars, had been stalled since October when the 8th US Circuit Court of Appeals temporary halted. More than 40 million individuals, mostly young people, were eligible to partake in the program. Biden was trying to buy votes and the Supreme Court said, “I don’t think so, Scooter.” So the kids will have to repay their debts. Like my wife and I did.
In the second decision, the court sided with Lorie Smith, a web designer who holds religious objections to same-sex marriage. In 2016, Smith filed a lawsuit against the state of Colorado, asserting her willingness to serve customers planning opposite-sex weddings while declining requests from same-sex couples seeking similar services. Smith contended that, as a creative professional, she possesses the right to exercise freedom of speech by refusing work that contradicts her beliefs. Of course she does. How was this even a question? This is a massive victory for free conscience and speech and a hammer blow to the gender cult trying to force a free people to bend to their ideology.
The reporting on the story is highly revealing. For example, CBS News reporter Melissa Quinn put the matter this way: “All six conservative justices sided with the designer, while the court’s three liberals dissented.” Then those three justices aren’t liberals are they? Those who voted in favor of Smith’s freedom of conscience and speech are the true liberals. The three that dissented—Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson—are progressives, which is an authoritarian orientation imposing a religious-like ideology. We can highlight the authoritarian orientation by simply noting that the Supreme Court has made it possible for a gay baker to refuse on grounds of conscience and free speech to bake a cake with an anti gay message or a homophonic slur. That this doesn’t occur to progressives is because they work from the politics of power and not from principle.
Okay, now on to the main subject of this essay: the overturning of a major component of institutional racism known as affirmative action.
Before the landmark decision yesterday, the Supreme Court had addressed the issue of affirmative action in several previous cases. In the case of Regents of the University of California v Bakke (1978), the Court ruled that strict racial quotas in university admissions were unconstitutional but allowed the consideration of race as one of many factors in a holistic review process. Subsequent cases, such as Grutter v Bollinger (2003) and Fisher v University of Texas at Austin (2016), upheld the use of race as a factor in admissions decisions (for purposes of diversity) but set limits on its implementation. The Supreme Court overturned all precedent on the matter on Thursday.
The Supreme Court ruled that the race-conscious admission policies implemented by Harvard College and the University of North Carolina (UNC) are unconstitutional. The policies violated the equal protection clause of the Fourteenth Amendment, the majority determined. That amendment reads in part: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
Of course these universities violated the Fourteenth Amendment, as well as the Civil Right Act of 1964. How was this not obvious from the start? (I say this knowing that, at one point in my life, I defended affirmative action.) Harvard and UNC are not alone. More than 40 percent of universities, and 60 percent of selective schools, consider race to some degree in admissions decisions. These percentages would be even higher if it were not for the nine states—Arizona, California, Florida, Idaho, Michigan, Nebraska, New Hampshire, Oklahoma, and Washington—that had already banned affirmative action at public universities. Yesterday’s ruling now commits the rest of the nation to colorblind admissions policy—for public and private institutions. It will be interesting to see what elites come up with to keep the diversity racket going.
Highlighting the influence of the three justices appointed by President Donald Trump, the decision marks another big moment where the conservative majority on the Court has overturned long-standing precedents on significant matters that have shaped American society. While I disagree vehemently with last years Dobbs v Jackson Women’s Health Organization decision overturning Roe v Wade (1973), a ruling that runs contrary to the principle of individual liberty, I am elated that the Court decided to uphold individual liberty in the case of affirmative action. (See Equity and Social Justice: Rationalizing Unjust Enrichment; Difference and Equality; Demographics and People.)
The Court voted 6-3 in the UNC case and 6-2 in the Harvard dispute, with Justice Ketanji Brown Jackson recusing herself from the Harvard case. Chief Justice John Roberts authored the majority opinion, which was supported by Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. Justice Thomas presented a concurring opinion during the proceedings. Justice Sonia Sotomayor read her dissent aloud, marking the first time a dissenting justice has done so this term. Sotomayor said the majority opinion is “not grounded in law or fact and contravenes the vision of equality embodied in the Fourteenth Amendment.”
The majority put the matter bluntly: “The admissions programs of Harvard and UNC cannot align with the protections offered by the Equal Protection Clause. Both programs lack clear and measurable objectives that justify the use of race, employ race in a detrimental manner, perpetuate racial stereotypes, and lack meaningful endpoints. We have never allowed admissions programs to operate in such a manner, and we will not endorse it today.” Roberts noted that universities can still consider an applicant’s explanation of how race has influenced his life experiences, whether through encounters with discrimination, moments of inspiration, or other relevant factors, a caveat that appears to put racial identity in the same subjective spirit as gender identity. How does one show this? It is therefore useful that he added that students should be evaluated based on their experiences “as an individual—not on the basis of race.” “Many universities have for too long done just the opposite,” Roberts noted. “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.” Robert’s appears to waffle a bit on another precedent, but Thomas cleans it up in his concurring opinion, that Grutter is “for all intents and purposes, overruled.”
Predictably, Thomas is getting hammered by progressives over his opinion because he benefitted from an affirmative action like program in 1971. My response on social media? “Among the most admirable things a man in a high place can do is to act on principle and use his authority to dismantle an unjust status quo despite having personally benefitted from it.”
I have in numerous essays on Freedom and Reason arguing that any claim to privileges and immunities relative to group membership must be based on objective grounds. For example, the intrinsic differences between men and women are such that differential treatment is require to achieve equity; to treat women as if they are men is to systematically discriminate against the former. This might also be the case if racial groups were intrinsically different; but the consensus is that race is a social construction, the divisions based on the arbitrary selection of phenotypic traits that have no bearing on behavioral or cognitive outcomes. Men and women represent two distinct genotypes; in racial terms, there is only one genotype in our species. Thus laws which privilege individuals on the basis of their perceived racial membership commits the fallacy of misplaced concreteness, where the individuals is treated as a personification of an abstraction, in this case a demographic category.
Considering this problem, the dissent by the Court’s progressives represents less of a reasoned argument and more of an exercise in identitarianism. Sotomayor countered Roberts with this: “Today, this Court stands in the way and rolls back decades of precedent and momentous progress. It holds that race can no longer be used in a limited way in college admissions to achieve such critical benefits.” “In so holding,” she writes, “the Court cements a superficial rule of colorblindness as a constitutional principle in an endemically segregated society where race has always mattered and continues to matter.” Joined by Kagan and Jackson (on the UNC case), Sotomayor said the court’s decision “subverts the constitutional guarantee of equal protection by further entrenching racial inequality in education, the very foundation of our democratic government and pluralistic society.” “Simply put, the race-blind admissions stance the Court mandates from this day forward is unmoored from critical real-life circumstances,” Jackson writes in a concurring dissent. “Thus, the Court’s meddling not only arrests the noble generational project that America’s universities are attempting, it also launches, in effect, a dismally misinformed sociological experiment.”
Meddling is a revealing choice of words. One expected Jackson to mock the principle of color-blindness given her commitment to critical race theory (CRT). However, colorblindness is not a superficial rule; the demand to treat individuals equally where there is no objective grouped differences is the foundation of the American Creed. Hardly superficial, this principle is essential to the American way of life. Is it not obvious in policies restricting Asian-American access to institutions of higher education that holding racialized groups to a different standard discriminates against whites and especially Asians? How is that equal? Wasn’t affirmative action the misinformed sociological experiment? Doesn’t the policy rest on a fallacious sociological explanation, the error of treating an abstraction as if it is an actual thing, in this case a strange alchemy that attempts to yield a concrete person from checked boxes on a census form? Skin color tells us nothing about who a person is, what he believes, or what he does or can do.
The cases taken up by the Court originated from legal disputes initiated in November 2014 by Students for Fair Admissions (SFA), an organization founded by conservative activist Ed Blum, who has long advocated against the use of racial preferences in American society. In the Harvard case, SFA alleged that the university’s admissions policies violated Title VI of the Civil Rights Act. Title VI prohibits racial discrimination in any program or activity that receives federal funding. The organization accused Harvard of engaging in discriminatory practices against Asian-American applicants, claiming that the university assigned lower ratings to Asian-American students on personality traits and imposed limits on the number of Asian-American applicants admitted. In the University of North Carolina case, SFA asserted that the university violated the Equal Protection Clause of the Fourteenth Amendment. The organization argued that the university failed to consider race-neutral alternatives to achieve diversity among its student body.
For me, these were open and shut cases. The Harvard policy contradicted the plain language of the Civil Rights Act, which was passed to address racial discrimination and promote equal opportunities in various aspects of public life, including education, employment, and housing. While some have argued, deploying convoluted and fallacious argument, that affirmative action is consistent with the law because it aligns with the overall goal of combating discrimination and promoting equality, the defenders of individual liberty have insisted that such policies are discriminatory and violate the principle of equal treatment under the law. If the Civil Rights Act prohibits intentional discrimination based on race, color, religion, sex, or national origin, and affirmative action involves the consideration of race or ethnicity as a factor in decision-making, how can such a policy stand in the land of the free?
In her majority opinion in Grutter, Justice Sandra Day O’Connor suggested that the use of racial preferences in college admissions may no longer be necessary in 25 years, which stamped the policy with something of an expiration date of 2028. Chief Justice Roberts, writing for the majority, pointed out that neither Harvard nor the UNC provided evidence to the court indicating that their race-based admissions programs had clear end points. He stated that there was no reason to believe that these institutions would, in the near future, comply with the requirements of the Equal Protection Clause, even if they were acting in good faith. I must confess that the idea of an end date for a policy that should never have been implemented in the first place makes little sense to me, especially since the claims of systemic racism, beyond affirmative action itself, a de jure policy with the express intent to discriminate against whites and Asians in the institutions of opportunity, suffer from lack of evidence and the afore-mentioned fallacy.
In a statement oblivious to the fact that affirmative action confuses individuals with abstractions and rewards or punishes concrete persons for things they had nothing to do with, Stanford tweeted:
We are hearing complaints from progressives that the Supreme Court’s recent rulings fly in the face of what the majority wants. But justice is not necessarily found in what the majority wants. Justice very often eludes the crowd. Justice is not what is popular. Justice is what is right. In that determination, it’s often the minority—and sometimes the one—who speaks truth. The question now is for how much longer will the race hustlers cling to the notion that blacks cannot succeed in a meritocracy—that, without being judged by a diminished standard, nearly sixty years since the fall of Jim Crow, they will continue to suffer extraordinary rates of crime and violence, joblessness, poverty and single-parent households—and that this is the fault of white people? Hopefully this decision will start the unwinding of the New Racism that progressives have strived to entrench in every American institution.
freedom and reason 