SCOTUS Ends Affirmative Action
"Eliminating racial discrimination means eliminating all of it."
Yesterday, the Supreme Court released its opinion on Students for Fair Admissions, Inc V Harvard/UNC, effectively ending affirmative action in higher education. The full opinion is long, over 200 pages, but it is well worth the read. It can be found on the SCOTUS website.
The court ruled 6-3 (Sotomayor, Jackson, and Kagan dissenting) that the admission protocols for both Harvard and UNC violated the Equal Protection Clause of the 14th Amendment of the Constitution. The ruling has pitted Justice Clarence Thomas against Justice Ketanji Brown Jackson.
For her part, Jackson leaned heavily on “intergenerational wealth” as a reason for racial disparities. But her reasoning ignored the fact that 70% of families lose their inherited wealth within two generations and 90% within three. She also declared that poor blacks were forced into sharecropping and thus could not build generational wealth, but again, she parrots the CRT talking points while ignoring the fact that 2/3rds of American sharecroppers were white. She continued in her dissent by bringing up Jim Crow laws of the past and the practice of redlining. The gist of her argument was that discriminating based on race is undoing the racial discrimination of the past.
Justice Thomas took issue with her response. His entire rebuttal is worth the read. It’s found on page 97. The shortened version is that he refuses to see black people as perpetual victims and thinks the only way the law can be fair is if it is “colorblind.” Here are some of the more notable quotes from his concurring opinion:
Such a view is irrational; it is an insult to individual achievement and cancerous to young minds seeking to push through barriers, rather than consign themselves to permanent victimhood.
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JUSTICE JACKSON’s race-infused worldview falls flat at each step. Individuals are the sum of their unique experiences, challenges, and accomplishments. What matters is not the barriers they face, but how they choose to confront them. And their race is not to blame for everything—good or bad—that happens in their lives. A contrary, myopic worldview based on individuals’ skin color to the total exclusion of their personal choices is nothing short of racial determinism.
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History has taught us to abhor theories that call for elites to pick racial winners and losers in the name of sociological experimentation.
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This vision of meeting social racism with government-imposed racism is thus self-defeating, resulting in a never-ending cycle of victimization. There is no reason to continue down that path.
Justice Thomas even brought up the discrimination against Asian students and asked, if we ascribed to Jacksons’s worldview, who would have to be discriminated against in the future to make up for the discrimination of today?
Harvard has already responded to the ruling, declaring that they would now be accepting essays that discuss how a student’s race has affected their life.
While this certainly seems like Harvard is trying to do an end-run around the ruling, the university would do well to take note of the following line:
The Supreme Court has clearly ruled that universities can no longer use race as a deciding factor in admissions.
This was not the only ruling out of the court today. There was also a ruling in Groff v. DeJoy, the case of a Christian postal worker who was forced out of his job because he refused to work on Sundays. In a rare unanimous decision, the court redefined what constitutes “undue hardship” on behalf of the employer, then kicked the case back to the lower courts for them to re-rule based on the new definition.
Another notable ruling, released earlier this week in Counterman v. Colorado, has some potential Free Speech implications. This case was decided 7-2 in favor of Counterman, but had some interesting splits. Counterman was convicted of stalking a Colorado musician. He had been sending her threatening messages via Facebook, even creating new accounts whenever she blocked him. After he was convicted, Counterman tried to pull the “it’s just a prank, bro!” card out of his pocket and claim that since he never really meant any harm by repeatedly creating new accounts to send death threats, there’s no way he should be guilty of and “true threats.”
Justice Kagan wrote the majority opinion, with Roberts, Alito, and Kavanaugh joining her. In Kagan’s opinion, the state had used the wrong test to decide if Counterman’s “speech” had reached the threshold of threatening. She argued that the state had used an objective test when really they needed to consider whether the speaker was “reckless” in his speech, meaning he knew that she would think he meant it when he said he wanted to kill her.
Sotomayor, joined by Gorsuch, voted to overturn the stalking conviction but disagreed with Kagan’s “recklessness” test. The two justices seemed to want the idea of a “true threat” more strictly defined. Sotomayor even said, “Especially in a climate of intense polarization, it is dangerous to allow criminal prosecutions for heated words based solely on an amorphous recklessness standard.”
Barrett and Thomas each wrote a dissenting opinion. Barrett claimed that the threshold for “true threat” had been more than met and did not need to be narrowed more than it already is. Thomas felt that the court was using the wrong case law to justify its majority opinion and that it seemed more like “policy-driven decisions masquerading as constitutional law.”
It seems like this case means that if someone gets in trouble for sending threats, they can just claim it was all jokes, and they didn’t think anyone would take them seriously. If that interpretation is correct, it will make it much harder to take someone to court for harassment.
Lorraine Yuriar is a wife, mother, and a lifelong conservative, currently stuck in a very blue state.
Should all Americans be allow to be judge on who you are and not by your race.