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The six rightwing justices on the US Supreme Court today ruled that affirmative action in college admissions violates the US Constitution, because they also want to believe the Constitution is magically “color blind,” despite its being written for and governing over a nation that has always been anything but.
The Court’s decision specifically struck down affirmative action policies at Harvard and at the University of North Carolina that had been challenged by a rightwing legal group, but the ruling will apply to virtually all public and private universities and colleges, except for the weird ones like Hillsdale that reject all federal funding so they can discriminate all they want. The vote was 6-3 in the North Carolina case and 6-2 in the Harvard case. Justice Ketanji Brown Jackson, who unlike some of her esteemed colleagues understands basic ethics rules, recused herself in the latter because she served on a board at Harvard.
Chief Justice John Roberts wrote in his majority opinion that, in his fan fiction version of the United States of America, “the student must be treated based on his or her experiences as an individual — not on the basis of race.” He continued,
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.
As with last year’s decision nullifying Roe v. Wade, the Court’s decision today erases decades of previous Supreme Court precedents going back to the 1970s, holding that the interests of having a diverse student body allows selective institutions of higher learning to make at least some consideration of race in admissions. In essence, the Supremes now agree with Tucker Carlson, who in 2018 just wanted to know why the hell diversity is even worth bothering with.
While universities — and, as we say, previous Court decisions — believe having a diverse student body is key to education in a multiracial republic, Roberts said that Harvard and UNC’s admissions processes
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.
Obviously, the only way to be fair is to go by students’ test scores and grades, which are completely objective and unbiased, although of course it remains perfectly fine to give special treatment to children of alumni and big donors, because that’s how you guarantee a new Economics building gets funded. That’s not discrimination, it’s just a way of filling the Endowment’s quid pro quota.
But just to show that the Civil Whites Agenda isn’t utterly heartless, Robert generously added that
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.
That certainly reminds me of a a few white students in first-year writing classes I taught at U of Arizona in the late 1980s, whose rhetorical analysis papers on Martin Luther King’s “I Have a Dream” speech said that King would be very upset on their behalf. The poor dears just knew that they were only attending a crappy state university because their guidance counselors all told them unqualified Black students had been given their places at more selective schools. They wouldn’t make that up.
In a bizarre bit of hypocrisy, the decision carved out an exception for the nation’s service academies, because apparently having a diverse officer corps in the military is valuable in ways that eradicating white supremacy in medicine, law, science, and the liberal arts is not.
In a furious 69-page dissent that she read from the bench — something justices only do when they’re well and truly pissed off at a majority’s terrible decision — Justice Sonia Sotomayor, joined by Justice Jackson and Justice Elena Kagan, castigated the majority, saying that it’s a “disturbing feature of today’s decision that the Court does not even attempt to make the extraordinary showing required” to overturn well-established precedent. But hey, that’s what Sam Alito did in the Dobbs decision, so obviously the rightwing majority can do what it wants.
Getting right at the false premise at the heart of the majority decision — and at the center of pretty much every conservative fiction about race in America — Sotomayor wrote,
The Equal Protection Clause of the Fourteenth Amendment enshrines a guarantee of racial equality. The Court long ago concluded that this guarantee can be enforced through race-conscious means in a society that is not, and has never been, colorblind.
She noted that ever since the Brown v. Board of Education decision, the Court has recognized that discrimination is real and pernicious, and that prior decisions have affirmed affirmative action as a means of ensuring equal educational opportunity for all Americans. But in today’s decision, she said,
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. The Court subverts the constitutional guarantee of equal protection by further entrenching racial inequality in education, the very foundation of our democratic government and pluralistic society.
Sotomayor has described herself as “the perfect affirmative action child,” arguing that while affirmative action helped her gain admission to elite institutions like Princeton and Yale, her achievements are absolutely her own doing. She told students at Michigan State University in 2018, “Don’t look at how I got in. Look at what I did,” and urged them to focus on what they bring to their education:
“You get in because you’re giving something of value to the community. […] And so is being different. So is coming from a background that a majority of students are not from. The question is not, how did I get in? It’s: What did I do when I got there? And with pride, I can say I graduated at the top of my class.”
The Washington Post notes (gift link) that in contrast to Sotomayor, Justice Clarence Thomas has said that
he felt affirmative action made his diploma from Yale Law practically worthless; he has been a fierce opponent of racial preferences in his three decades on the court. “Racial paternalism … can be as poisonous and pernicious as any other form of discrimination,” he has written.
Still as incredibly bitter as ever, Thomas read his own long concurrence with the majority opinion from the bench, claiming that the Harvard and UNC programs were “rudderless, race-based preferences designed to ensure a particular racial mix in the entering classes,” and that they “fly in the face of our colorblind Constitution and our nation’s equality ideal,” at least for the perfectly spherical, frictionless, colorless human beings in the airless zero-gravity environment he imagines America to be. While he was at it, he aimed particular scorn at Jackson, accusing her of believing that “almost all of life’s outcomes may be unhesitatingly ascribed to race.”
In her own dissent (Page 209 in the opinion PDF) which she didn’t read from the bench, Justice Jackson specifically responded to Thomas’s “prolonged attack” and noted that Thomas
“does not dispute any historical or present fact about the origins and continued existence of race-based disparity (nor could he), yet is somehow persuaded that these realities have no bearing on a fair assessment of ‘individual achievement.'”
While she was at it, she wrote that Thomas “ignites too many more straw men to list, or fully extinguish, here,” and by golly she is definitely the far better writer, she wins. As to the majority’s declaration that the Constitution is colorblind, she added,
“With let-them-eat-cake obliviousness, today, the majority pulls the ripcord and announces ‘colorblindness for all’ by legal fiat. But deeming race irrelevant in law does not make it so in life.”
In conclusion, Jackson rules, Thomas drools, and things are now going to get a lot uglier before they get better, all in the name of an America that none of us actually live in, the end.
[NYT / WaPo (gift link) / US Supreme Court / Sotomayor dissent / NBC News / Detroit News / Headline stolen pretty shamelessly from Michael Harriot on Twitter / Base photo (photoshopped, cropped): Jarek Tuszynski, Creative Commons License 3.0]
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