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Supreme Court Poised to Strike Down Affirmative Action?

Posted on Wednesday, January 26, 2022
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AMAC Exclusive – By Daniel Roman

Monday, January 17 was Martin Luther King, Jr. Day. While King stood for many things over the years, the public memory of him will always be defined by his seminal speech where he told America that he had a dream. A dream that his “four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character.” A week after the nation commemorated the anniversary of his birth, the Supreme Court took a step in the direction of making that dream a reality—agreeing to revisit the controversial issue of so-called Affirmative Action.

For decades, the Court has struggled with the question of the role of race in admissions and hiring. Well-intentioned jurists, even conservatives, have preferred muddle and compromise, recognizing the real injustices of the past. Yet the results of these half-measures – namely, the notion that racial quotas are unconstitutional but race can be taken to account on an individualized basis – have helped feed the current identity politics culture. And they have, over time, revealed a fundamental truth. You cannot run any system which takes “race” into account without defining applicants by race, and hence such policies have served to categorize applicants by race rather than diminish its relevance. Now, with a new conservative majority on the Court, there are indications the justices may be inclined to abandon half-measures and make clear that race has no place determining whether one is hired or accepted in America.

On Monday, the U.S. Supreme Court agreed to hear the appeal of a District Court ruling that Harvard University’s admissions policy did not unconstitutionally discriminate against Asian American applicants on the basis of race. Notably, Judge Alison Dales Burroughs did not in fact find that no discrimination took place. The Judge merely concluded that she was not persuaded beyond reasonable doubt that the majority of any anti-Asian discrimination occurred during the Harvard Admissions process rather than before at the high school level, or that such discrepancies, if they occurred, were a basis for striking down the Harvard policy. She would “not dismantle a very fine admissions program that passes constitutional muster, solely because it could do better.” Now, the Supreme Court is considering doing exactly that.

One reason the Supreme Court may have taken the case is because the lower court decision is remarkably thorough. Many of the factual contentions on both sides about what precisely Harvard is doing are uncontested. What is contested is what they mean, and whether that is a basis for striking them down. At almost every step, Burroughs deferred to Harvard, whether it was in accepting the explanations of Harvard’s expert witnesses to discredit those of the plaintiffs, or, in the final accounting, placing the burden of proof on those suing Harvard to prove beyond any reasonable doubt that Harvard did unconstitutionally discriminate. The very thoroughness made the problem with the decision clear. It applied a standard more common to criminal trials to a civil proceeding, setting an almost impossible standard for proving wrongdoing. It could “probably exist,” Harvard could probably “do better” to avoid discrimination, but apparently none of that was a basis to tell Harvard it had to do better, or to compensate those harmed by Harvard’s unwillingness to do so.

The case provides the Supreme Court the perfect opportunity to transform the norms about Affirmative Action and revisit what is and is not constitutional. It is not necessary for the justices to contest the factual evidence presented at the trial. The revelations from the trial, coming as they did before COVID, before nationwide riots, and before focus turned to CRT, showed an academic culture that, insulated from the wider public and accountability, had internalized social engineering as desirable and legitimate. Racial stereotypes, rather than crude caricatures, had become inherent parts of social justice discourse. Where the Supreme Court has the chance to shift the paradigm is by flipping the burden of proof. Harvard did not have to prove it was not illegally discriminating because Burroughs did not require it.

In not requiring it, Burroughs took the Supreme Court’s 4-3 2016 decision in Fisher v. University of Texas and twisted it to its most extreme possible interpretation. As might be noted, that decision itself did not even command 5 votes. Justice Scalia had died several months earlier, and Justice Kagan did not take part. While the decision likely would have been 5-4 if they had both taken part, Anthony Kennedy and Ruth Bader Ginsberg, who both voted with the majority, are no longer on the court, having been replaced by Brett Kavanaugh and Amy Comey Barrett. Unless both are willing to break with even Justice Roberts to vote with the liberals, it seems likely there is now a 6-3 majority ready to rule in the opposite direction. In his dissent in Fisher, Alito argued that “if a university can justify racial discrimination simply by having a few employees opine that racial preferences are necessary to accomplish these nebulous goals… then the narrow tailoring inquiry [of strict scrutiny] is meaningless. Courts will [effectively] be required to defer to the judgment of university administrators, and affirmative-action policies will be completely insulated from judicial review.” Justice Thomas went further, arguing that “a State’s use of race in higher education admissions decisions is categorically prohibited by the Equal Protection Clause.”

While many Americans would welcome the court embracing the clarity of Justice Thomas’ words, even adopting the position laid out by Alito would transform the issue. Alito described how the problem with present precedent is that it defers to schools—both on their claimed need for diversity programs and the lack of alternatives to racial discrimination—to such a degree that the burden of proof for plaintiffs challenging such policies is almost at the level of prosecutors trying to prove a murder or another criminal act. In fact, the technical nature of these cases makes it worse, as Justice Alito wrote, rendering these policies “completely insulated from judicial review.” If the Court now adopts Justice Alito’s position, that there may be some circumstances and some cases where race can be used in hiring or admissions, but that the onus should be on those discriminating to prove why they need to do so, it would likely necessitate dramatic changes to hiring and admissions across the nation. “Taking their word for it” is akin to legalizing quotas by a legal “back door.”

The Harvard case is a prime example of just what Alito called out. At all points, Burroughs applies the plurality standard from Fisher in such a way as to always defer to Harvard, no matter the evidence against the school, provided Harvard can provide one expert witness with one alternative explanation for any phenomenon. It is exactly what Alito warned about in 2016: in practices, it effectively places the admissions practices beyond judicial review. Simply voiding the decision and ordering the District Court to revisit the case, this time placing the burden of the argument on Harvard would send shockwaves through the country.

Daniel Roman is the pen name of a frequent commentator and lecturer on foreign policy and political affairs, both nationally and internationally. He holds a Ph.D. in International Relations from the London School of Economics.  

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Rick
Rick
2 years ago

How ironic that as affirmative action is finally struck down, dimocrats will appoint a justice based solely on sex and skin color, and probably totally unqualified!

Steven Tapper
Steven Tapper
2 years ago

Like all “well intended” programs created by the Federal Government, Affirmative Action, has failed miserably. What was initially projected to help minorities has not had the positive affect it’s creators envisioned. In reality it has further divided the country, created lost opportunities for people who worked hard only to be passed over for less qualified applicants. It absolutely created all kinds of unseen liabilities to businesses. I could speak all day on anecdotal evidence on the costs to businesses. It’s about time that it is discarded as it has not solved any of the problems it was supposed to fix.

Kevin W
Kevin W
2 years ago

Two real life examples in my family. 1) 30s white woman with a degree and management experience applied for a job. A relative, who worked at the company and was involved in the hiring process, told her she was qualified for the position. However, they needed a “twofer” or “threefer” to comply with affirmative action hiring rules. You can figure the combinations.
2) Post office sectional center trained and tested applicants for their automated sorting system. 30s white male ( my brother) had highest test score, but was told the job had to go to a minority preferably Hispanic. He cited Spanish heritage, but connected to Spain. That doesn’t count according to AA rules. Spaniards are not Hispanic! Paging Mr. Kafka

FreedomGramma
FreedomGramma
2 years ago

Affiramative action IS racist.

Rik
Rik
2 years ago

In 1978, I applied for a yellow page sales position with SNETCO, the phone company in Connecticut. I took a test with at least 60 other applicants. They graded the test while we all waited. I was the first person called by the reviewers. The gentleman said that I had gotten the highest score on the test, a 96, and that I also had 4 years of experience as a newspaper advertising salesperson and that I was the best qualified candidate for the then $60k/yr position! . . . I gleefully expected to be hired but then he said: “but I can’t offer you the position because of Affirmative Action and that they had to hire any Minority that achieved a 70 on the test!” . . . I was devastated! He then added that I could take a repairman position that paid 12k/year and that after at least a year could then reapply if an opening happened and would then be given preference because I was an employee. Unfortunately, I was married and already financially struggling on my $15k salary and couldn’t possibly afford to do so. . . . That job eventually paid over $120k/year + great benefits. Now, at age 74, I HAVE to continue to work just to survive! . . . Bitter, somewhat, but happy that I have good health to allow me to continue working at a 7 day/8 hr job that lasts maybe 5 months a year but allows me to make enough money to survive the entire year!. . . . Thank you Lord!

Wanda
Wanda
2 years ago

Affirmative Action took over in the late 60’s and early 70’s after civil rights were established giving preferential treatment to the blacks for employment. I can remember white men who had been with a company for a number of years losing their jobs so the company could hire black men as the government wanted. It has always been a discriminatory practice, and I thought that sometime back (like in the 80’s) that the SCOTUS found it was unconstitituional, but I guess I am wrong on that one.

Jeri Hedges
Jeri Hedges
2 years ago

When hiring someone it should not be based on race. The person applying for the position should have the correct credentials and training to complete the task for which they are hired.

Nancy Ryan
Nancy Ryan
2 years ago

Race or the color of a person’s skin should never enter into hiring or treatment of others. Everything should be based solely on character, education, whatever requirements need to be met for the job applied for. No one is any better than another. Some people are kinder, more spiritual, love God more, better citizens overall; however, God created us all and He loves us all. We are required by God to love others as we love ourselves, as God loves us. That means kindness NO MATTER WHAT! That does not mean that people who commit crimes should not be punished. We have to have law and order, but it should be equal for all. HOWEVER, PEOPLE WHO ARE IN THE US ILLEGALLY DO NOT HAVE THE RIGHTS OF THE LAND (NATION). THEY ARE BREAKING GOD’S COMMANDMENTS AND SHOULD BE SENT BACK. Then, if they truly want to be a citizen, they must go through the legal process like everyone else. Trust me, every person who has entered the US illegally will have to answer to God for what they have done. Sin (crime, etc.) must be atoned for. If not during life, then after death. There is no way around this no matter what people believe. Belief’s cannot change the truth.

Gregory Russell
Gregory Russell
2 years ago

Ok, so, I posted a reply to this thread about Affirmative Action, and it was flagged as “!Awaiting Approval”. So I contacted a support agent on LiveChat, a Lea H. I queried her as to why my post was flagged as waiting for approval. She said that typically means that the post contained a “sensitive” word, or a “trigger” word. So I said, ahhhh, so AMAC practices censorship just like the left? She said no, not censorship, but, she said; “It’s not about censorship, it’s about the use of inappropriate words. Like cuss words or derogatory terms for example”. I said, in a free society, we tolerate and allow speech that someone else may deem to be “inappropriate”, and besides, who exactly decides whats "inappropriate"? She said she could forward my concerns and comments to "upper management"...I told her, I dont tolerate censorship and this politically correct crap from anyone. Not those “supposedly” on the right, nor, those on the left. I asked for the money back on the 5-year membership I had just sent in.
You all do what you wish, but I`m not going to deal with an organization that claims to be conservative then pulls the very same liberal crap that demon-crats pull.

THOMAS
THOMAS
2 years ago

I’m a firm believer in equal rights and equal opportunities for every American, regardless of race or religion. That being said, on the other hand, I’m staunchly opposed to giving one race or religion special treatment over another! I’m white and I’ve worked hard and made many sacrifices for the little that I have today, and I resent the fact that anyone would refer to me as a White Supremist. All that I want is to live out the rest of my life in peace and harmony with my fellow Americans so that, we can ALL reap the benefits of our wonderful country!

Gregory Russell
Gregory Russell
2 years ago

Affirmative action IS prejudice and discrimination. PERIOD. Yet liberals are perfectly fine with hating, holding back, and discriminating against Caucasians, even as they chide the same, alleged treatment against blacks. The truth is, blacks dont want to not be judged by the color of their skin but by the content of their character. They want specifically to be judged and dealt with solely on the basis of the color of their skin, and too many HOPE we dont judge them by the content of their character. Its fine to have black television networks, black caucuses, black schools, training and job programs solely for blacks, quotas that mandate a specific number of blacks, points added to testing and performance assessments for blacks, etc. Try any of these things for whites, and demon-crats would howl like demons hit with holy water. In todays America, if youre a straight, white, Christian male, you dont stand a chance.

Steven Tapper
Steven Tapper
2 years ago

Affirmative Action is actually Reverse Discrimination. I’m 75 years old and have seen first hand the damage Affirmative Action has done to businesses and colleges. I worked for a company in the early 1970’s where they had to promote a Black candidate into a Field Management position he was not qualified or mature enough to handle. Three months after he relocated to Upstate New York he was involved in a serious car accident for which he was responsible. Two people lost their lives and he totaled a company car. Unknown to the Regional Manager, he never applied for a New York Drivers License. They had to keep him in this position for months before the company lawyers found a way to relieve him of his duties and replace him with a qualified Field Manager. This is just one example from one business who had to endure this government mandated intrusion into their business.

D.P.
D.P.
2 years ago

Affirmative action has been a thorn in the side of our culture for years and has been abused from every angle, every perspective, and every approach. It needs to be shut down as a failure. If someone suggests a different kind of “action” program, then let it pass constitutional muster before it becomes law.

Eli 7777
Eli 7777
2 years ago

The goal of the Marxist BLM curriculum CRT or Critical Race Theory in schools today, is to diminish whites or other races, in an attempt to make them feel or think they’re inferior. Successful families are called privileged, & shamed. It’s very divisive. Reports share the idea comes from a Maoist Communist play book. Kamala Harris’s sister was involved with a Maoist group in CA. It clarifies why Kamala Harris said they weren’t going to quit, & it was brilliant. Maxine Waters had encouraged the MN. riots. Now thousands of young male adults are being transported across the U.S. A parent said at a schoolboard meeting, that CRT reminded her of the Communist nation she left. Inform NEA members who just don’t get it yet.

David Maciel
David Maciel
2 years ago

I would love to know the selection criteria for the leader of Harvard’s Office of Equity, Diversity, Inclusion and Belonging. Innately racist, the office would seem to be at odds with the university’s academic mission as well as its admissions standards. Such intra-university politics are driven by leftist faculty, staff and alums. Equity equals fairness and guess what would happen if faculty, staff and alums looked to their left then to their right; they would see like thinkers and politics in both places. Is this diversity? It wasn’t that long ago that you could find more than a few political moderates and conservatives on campus. Where are they?

Backwoods
Backwoods
2 years ago

I would be retired now if not for affirmative action. So the SCOTUS needs to get rid of it.

Mike S
Mike S
2 years ago

I’ve long disliked Affirmative Action since it was and still is a system that legitimizes discrimination. Civil liberties need to be guaranteed to all races. I know of several individuals who were victimized by this practice going back 44 years. It was wrong then and it’s still wrong now. Do I wish for minorities to be deprived of having a better life and the means to support their families, absolutely and unequivocally NO. If we are to achieve parity and equality (the word Democrats like to use), it must be by merit alone. How do you do that? Improve education; eliminate urban slums; eliminate young gangs; reduce the number of matriarchal families where the sole adult is an African-American woman.

DDMac
DDMac
2 years ago

And the President has promised to deliver a black female candidate for the Supreme Court? What??

FedUp
FedUp
2 years ago

Affirmative Action is the only systemically racist policy I’ve ever been able to identify. That is until all the woke-holes began implementing many more new ones.
Establishing lower standards for minorities has done nothing to help them. It’s simply taught minorities that
1) Because of your skin color, society has lower expectations of you and that that same society will make exceptions for you because, well obviously, you’re not capable of doing as well as others
2) That as a minority, you are “owed” special preference

Lynn
Lynn
2 years ago

I think that many of the problems we see in big and small cities across the USA is due to unqualified affirmative action college grads who are in over their heads.

Wayne Peterkin
Wayne Peterkin
2 years ago

If your goal is a color-blind society and the elimination of racism, then there is no place for policies that favor any group over another based on race. That color-blind society was MLK’s dream, it should be our national goal and none other. Such race-favoring policies are naturally divisive. You cannot fix some past injustice by causing another. Our society was proceeding in the right direction until Barack Obama starting using race and class as political weapons and the entire Democratic Party has joined that disgraceful tactic. We have seen nothing but increasing divisiveness and animosity since 2009. Let’s hope the SCOTUS begins to put a stop to it.

Linda
Linda
2 years ago

So. the Supreme Court has time to listen to this but not to listen to evidence of fraud in our elections.

Edye Nye
Edye Nye
2 years ago

Strike down Affirmative Action! Should never have been allowed. Unconstitutional.

Kay
Kay
2 years ago

My worry in order to get rid of Kamela Harris, appoint her to the Supreme Court and open the office of VP. What a disaster. I do not agree with any race qualification in school, work etc. You qualify because you are the best person to complete the course

Pete from St Pete
Pete from St Pete
2 years ago

So far the only requirement that Biden has announced in the pending replacement of Justice Breyer is that it must be by a “black woman”. That essentially eliminates all men and non-black women. By eliminating over 92 per cent of the population on the basis of race and sex it will be the most overtly racist appointment ever.

Hdrydr
Hdrydr
2 years ago

It’s about time. Right after the pretender president, the obamanation took office that hunk of crap should have been crap canned.

anna hubert
anna hubert
2 years ago

nightmare we are living now is a result of affirmative action

Papa Doug
Papa Doug
2 years ago

Affirmative Action is a wolf in sheep’s clothing. It pretends to help by eliminating race inequities but in reality, tells Black Americans that they are unable to prosper or gain on their own so the government must help them. This is undercover racism and should be eliminated in favor of laws that punish racist policies and actions. Equal opportunity should mean exactly that.

R.J. from Arizona
R.J. from Arizona
2 years ago

This is going to be interesting.

Dan W.
Dan W.
2 years ago

In other Court news, Justice Breyer is retiring in June.

Fasten your seatbelt, this is going to be a bumpy ride.

PaulE
PaulE
2 years ago

If you’re expecting something other than yet another muddled ruling from this John Roberts’ Supreme Court, then I have some wonderful beach front property to see you in Phoenix, Arizona. The late Justice Alito described the issue perfectly and also why the Supreme Court is unlikely to do anything but create more legislation out of whole cloth from the bench, that creatively justifies the Harvard position.

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