If you suddenly find yourself on the losing side of the culture wars, buckle up. Because we’re just at the very beginning of the onslaught.
Certainly it came as no surprise Thursday that the Supreme Court, in a 6-3 ruling, banned affirmative action in higher education. It’s of a piece with the high court’s recent rulings on abortion, on guns, on gay marriage v. Christian web designers.
How long before story time drag queens show up on the docket?
One of the many great flaws in the Make America Great Again project is that we’re never told exactly when — by Trumpian standards, anyway — America was great in the first place.
Could it have been during the pre-civil-rights 1950s, in those mythical days of “Ozzie and Harriet” and “Father Knows Best,” when Jim Crow and Joe McCarthy and the White Citizens’ Councils held sway? Or was it at any time before Roe v. Wade recognized a woman’s right to control her own body? Maybe it was when gays couldn’t serve openly in the military or, for that matter, openly serve as a school teacher or a firefighter. Or when you could go to prison for the great crime of simply loving a certain other person, much less marrying that person.
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Whenever that moment of greatness was, the Trump/McConnell/Roberts Supreme Court seems intent on taking us back there.
It was no surprise — and no less shameful — to see the court, in turning back decades of affirmative action precedent, using the equal protection clause in the 14th Amendment, written so as to guarantee the rights of Blacks after slavery, as the rationale to close down programs designed to reduce racial inequities. It’s not just shameful. It’s a terrible irony, one foreseen years ago by the civil rights giant, Justice Thurgood Marshall.
And it’s not surprising — but still stunning — that Chief Justice John Roberts could basically rule, as noted in a New York Times editorial, that there is no difference between discriminating against Black people and the use of race-conscious programs to benefit Black people. That both are “equally bad.”
Roberts, by the way, has been in the battle against affirmative action since his days as a young lawyer in the Reagan administration. He is, as you might know, the author of the infamous Chief-Justice-is-blind view that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”
If only it were so. If only our society were on the verge of becoming colorblind or race neutral. If only you could eliminate racial injustice with the snap of 12 judicial fingers. If only it were that unchallenging to erase the inequities born of slavery, of Jim Crow, of redlining and other forms of housing discrimination, of so-called “failing” schools, of wealth gaps, of testing gaps, of employment gaps, of medical-treatment gaps, of gaps yet unmeasured.
If only you didn’t see the Trumpists, the Ron DeSantis crowd and the other white victimologists so loudly applauding the ruling. Would you think it a complete coincidence that this ruling comes at the same time as kids of color make up a majority of high school graduates? In the Atlantic, Ron Brownstein calls the ruling “another powerful blow for older white America in its struggle against the kaleidoscopically diverse and more populous younger generations for control of the nation’s direction.”
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The court didn’t stop there, of course. On Friday, just one day after the affirmative action ruling, Justice Neil Gorsuch wrote, in another 6-3 majority opinion, that it was OK for a Colorado Christian web designer to refuse to serve a gay couple on religious grounds. Of course it did. What it didn’t answer was whether that same reasoning could be applied to, say, Muslims or to Jews or to me or to you.
What’s head-spinning is that Gorsuch cited George Orwell’s views on free speech to justify the decision. As Justice Sonia Sotomayor pointed out in her dissent: “The majority’s repeated invocation of this Orwellian thought policing is revealing of just how much it misunderstands this case.”
Gorsuch thinks the case was about free speech and religious freedom when it was actually about whether it should be legal for a public business to use religion as a reason to discriminate against a protected class. I predict Orwell would have agreed with Sotomayor when she wrote that it was a “sad day in American constitutional law and the lives of LGBT people” when the “immediate, symbolic effect of the decision is to mark gays and lesbians for second-class status.”
And so it goes. Gay rights may have been expanded of late, but in today’s Supreme Court, those rights hit a wall whenever religion comes into play. Diversity on college campuses — especially those that open doors for poor and minority students — has been a great advancement in America over the past 50 years, but not great enough to impress this Supreme Court.
Unlike abortion rights and gun-safety laws, which both poll well in America, affirmative action has never been popular, going back to its beginnings in the Kennedy administration. Depending on how you word the poll question, as many as two of three Americans oppose it.
But Americans also favor diversity, which eventually became the basis for affirmative action. And I think the problem for affirmative action supporters is that it’s easy to call it discriminatory even as the goal is to create more fairness in a non-colorblind society.
What’s not well understood about college admissions is that affirmative action can be used only to distinguish one qualified student from another. What’s also not understood is that the great majority of colleges and universities admit more than 50% of applicants. They don’t use or need affirmative action. Community colleges, which serve about a third of undergraduates, don’t use or need affirmative action. Only 3.4% of colleges admit fewer than 20% of applicants.
The so-called “elite” schools — both private and public — that are competitive in admissions are also the schools that greatly expand opportunity at the highest levels. Affirmative action hasn’t come close to solving the problems of race — what has? —but real advancements have been made. These schools have changed the look of the medical profession, of law, of the highest ranks of business.
In 1968, only 1% of those in the legal profession were Black. It’s only 5% now, but that’s five times what it was before affirmative action. We can guess what direction those numbers are heading now.
It matters who goes to Harvard if you’re looking to make society more equal or to fill up Apple’s board of directors. It matters when all but one of the Supreme Court justices went to law school at either Harvard or Yale. The other one went to Notre Dame, also an elite school.
It matters that while affirmative action is a tool used at Harvard, there are also legacy students, oboe players, recruited athletes, children of donors, children of professors — a population that is largely white — who make up around 40% of Harvard’s admitted students. Are whites really the victims here?
And in the nine states where affirmative action was already illegal, Black representation at elite schools, like the University of Michigan and Berkeley, was reduced by half. The same will happen now across America even as the elite colleges use whatever method they can — including greater outreach using class instead of race — to try to make up the difference. Colleges aren’t going to change their views on diversity — just ask the folks at Colorado College or CU — but one projection has it that Harvard’s Black student population will drop from 13% to under 10%.
This is reality. Back in the ’70s in the Bakke case — when the Supreme Court first put limits on affirmative action — Justice Harry Blackmun wrote, “In order to get beyond racism, we must first take account of race. There is no other way.”
In her dissent Thursday, Ketanji Brown Jackson — the first Black female justice on the court — took Blackmun’s point and ran with it: “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.”
Even Roberts sees that much. Yes, the court now prohibits colleges and universities from using race as any sort of factor in admissions — unless, that is, we’re talking about one of the U.S. military academies. They still can. Because of, uh, what Roberts called the “potentially distinct interests” the military possesses. In other words, diversity is critical, as Roberts interprets it, if national security is involved. It’s not so critical, though, when, say, the American Medical Association points out that Black infants have a significantly higher survival rate when treated by Black doctors.
And in yet another tortured piece of reasoning, Roberts also said that nothing in his ruling prohibits a college from using a Black student’s essay on the difficulties in facing racial discrimination as a factor in admission — but only as it affects that one student. The school can’t consider, Roberts said, discrimination as it might affect society.
Confusing? Sure. Will colleges take advantage of the essay loophole? Sure. Is diversity needed in the military? Sure. Can Blacks, and presumably LGBTQ+ couples, still eat at a Woolworths lunch counter, if there are any Woolworths lunch counters left? Sure.
Will confusing, hard-to-justify rulings stop this Supreme Court, which has shown so little regard for precedent, from continuing to reshape the nation in its own antediluvian, antebellum, anti-progress image for years to come?
You can be sure it won’t even slow them down.
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