Contributor Post Created with Sketch. No Silver Linings to SCOTUS Affirmative Action Decision

 

Should conservatives be disappointed in the Supreme Court ruling today in Fisher v. University of Texas? Some on the right are probably taking heart that the Court, by a 7-1 margin, reversed the Fifth Circuit, which had upheld UT’s explicit use of racial preferences in its undergraduate admissions process. Abigail Fisher, whose test scores and grades would likely have gained her admission if not for UT’s consideration of race, will get her chance to go to trial. That will prove extremely embarrassing for the university faculty and administrators who administer these immoral programs.

Put me down, however, on the pessimistic side of the ledger. I think this is a setback for the cause of returning the nation to the color-blind principles of the Declaration of Independence and the Constitution. A majority of the Court, it seems to me, continues to agree that “diversity” in higher education is a compelling government interest that survives the strictest of scrutiny by the judiciary. Until Grutter v. Bollinger, the 2003 case that blessed affirmative action in university admissions, the Court had found that the only use of race that could qualify as a compelling government interest was in wartime — and that was in the Japanese internment case, Korematsu. To compare diversity in higher education to the nation’s ability to defend itself while at war showed how mistaken the Court was in Grutter.

In Fisher, the Court declined to reconsider this terrible mistake. Instead, it returned the case to the 5th Circuit for further proceedings because it wants the lower court to seriously examine whether any individual affirmative action program was “narrowly tailored” to achieve the goal of racial diversity in higher education. This left the basic law of Grutter unchanged and only ensures that challenges to affirmative action will focus on the ways that schools measure and count an applicant’s skin color — not on the unconstitutionality of using skin color at all. I’m sure that is why liberals such as Justices Stephen Breyer and Sonia Sotomayor joined the majority opinion. They managed to head off a case that should have resulted in the overruling of Grutter. In its place, they merely required the lower courts to be more diligent in examining the myriad ways that universities use race in their application processes.

Liberal judges know that they have university administrators on their side. There is no value that commands more reverence from faculty than affirmative action. Universities will sacrifice almost anything to protect and preserve racial preferences, even if it means lowering academic quality across the board or distorting the scholar’s mission to pursue truth. Given how administrators and faculty will rewrite and bend the rules to maintain racial preferences, today’s Court decision will only trigger a painful ground war where both sides will fight over the mechanics of counting skin color in university admissions.

Am I being too pessimistic? Is this another case, like the challenge to Obamacare last year, where conservatives and libertarians have erred in putting all their eggs in the judicial basket? Once again, the courts are not going to save us. Only winning elections can.

There are 27 comments.

  1. BrentB67 Inactive
    Mark Belling Fan: University of Texas, right? I thought we actually did win elections in Texas. So why doesn’t the state legislature nip this policy in the bud themselves? · 7 hours ago

    We did have the Top 10% method here for a while with mixed success.

    Two reasons we are still addressing this issue:

    1. You didn’t use the full name: University of Texas at Austin. With Austin being the operative word.

    2. University – ’nuff said.

    • #1
    • June 25, 2013, at 2:26 AM PST
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  2. ctlaw Coolidge
    Howellis: The founding documents make no reference to race or color. Although the 3/5 clause compromises on how “other persons,” i.e., the slaves, are to be counted for representational purposes, the 14th Amendment is the essence of purposeful constitutional colorblindness. · 5 hours ago

    This is one of th emost underreported/misreported issues in American history. Some law professor should write an article on how out of their way the founders had to go to keep the Constitution race neutral.

    • #2
    • June 25, 2013, at 2:33 AM PST
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  3. genferei Member

    Get the government out of schooling. Delivery, and funding. Then get the government out of telling private companies what they can do.

    Simple, really.

    • #3
    • June 25, 2013, at 2:55 AM PST
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  4. BrentB67 Inactive

    Initially I was pessimistic, but after I read a little more I was mostly frustrated.

    If I understand the ruling correctly the Supreme Court didn’t have to rule on the racial preference issue because the case had apparently been mishandled by the 5th circuit. Is that correct?

    If that is the case why/how did the case get this far. I was under the impression that the Justices as well as those who present to the court are some smart folks that know the difference between correct and incorrect procedure. 

    The whole case seems like a distraction thanks to a technicality. What am I missing? (I am confident there is plenty).

    • #4
    • June 25, 2013, at 3:45 AM PST
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  5. Salvatore Padula Inactive
    John Yoo: Once again, the courts are not going to save us. Only winning elections can. · · 30 minutes ago

    That’s what it comes down to.

    • #5
    • June 25, 2013, at 3:58 AM PST
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  6. Salvatore Padula Inactive
    BrentB67: Initially I was pessimistic, but after I read a little more I was mostly frustrated.

    If I understand the ruling correctly the Supreme Court didn’t have to rule on the racial preference issue because the case had apparently been mishandled by the 5th circuit. Is that correct?

    If that is the case why/how did the case get this far. I was under the impression that the Justices as well as those who present to the court are some smart folks that know the difference between correct and incorrect procedure. 

    The whole case seems like a distraction thanks to a technicality. What am I missing? (I am confident there is plenty). · 12 minutes ago

    You’ve got it basically right, but it’s not so much a problem of the 5th Circuit screwing up as it is of the Supreme Court wanting to find a way to punt on the merits of the case for now. This sort of thing actually happens fairly often when there isn’t a clear majority view among the justices.

    • #6
    • June 25, 2013, at 4:00 AM PST
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  7. ctlaw Coolidge

    I recall Scalia’s dissent in Grutter where he mocked the majority’s intellectual dishonesty in finding the policy necessary to further a compelling state interest.

    Therein lies the danger.

    BTW, Professor, why link to Politico rather than to the Court’s site?

    • #7
    • June 25, 2013, at 4:08 AM PST
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  8. Cato Rand Reagan

    Wasn’t it Justice O’Connor who said in Grutter that we had another 25 years of penance to go? By my count, we’re still about 15 years away. Hail Mary, full of grace . . . .

    • #8
    • June 25, 2013, at 4:08 AM PST
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  9. DocJay Inactive

     Once again, the courts are not going to save us. Only winning elections can.

    Winning elections over progressives helps but conservative nanny state corporate stooges have little interest in solving problems.

    We are so far gone only a fire breathing dragon can save us. Smaug where art thou?

    • #9
    • June 25, 2013, at 4:12 AM PST
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  10. Scarlet Pimpernel Member

    Hoping the Court will save us is not how a republic should operate. To be sure, the Court should uphold the Constitution, but there is no substitute for an educated and engaged citizenry.

    Meanwhile, it seems that Roberts is doing what he did as an advocate, crafting narrow arguments that come as close as possible to upholding existing precedents. The question is whether he’s also being political. I’m pessimistic, but I’m open to the possibility that his jurispridence will, ultimately, operate as an exploding cigar, wrecking Progressive jurisprudence.

    • #10
    • June 25, 2013, at 4:22 AM PST
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  11. Cato Rand Reagan
    Lavaux:

    Second, the 3/5 clause reduced the power of slave states in Congress because it reduced their population. You see, slave states counted their slaves to increase their populations and thus Congressmen. Opponents to slavery proposed the 3/5 clause to counter this practice. For God’s sake, get a clue! How do we defeat the satists if we’re as ignorant as they?

    What possesses you think I was unaware of this history? Ignorant? Pretty strong words given that I didn’t even mention the source of the 3/5ths compromise, much less get it wrong.

    And are you claiming that the founding generation was colorblind? If so, it’s you who could do some reading. Sure some of the slave owners had misgivings. Some even ultimately freed their slaves. But few thought blacks were the intellectual equal of whites. Colorblind? Not hardly.

    • #11
    • June 25, 2013, at 4:55 AM PST
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  12. Skyler Coolidge

    Howellis, that is one of the most disingenuous statements I’ve ever seen on ricochet. To pretend that the 3/5ths rule was resisted by southern states because of their sense of egalitarian feelings for their slaves astounds me, and were they alive now, I think the founders would have been equally astounded that you ascribe such egalitarianism to them. They resisted the 3/5 rule because they wanted more political power, not because they wanted slaves (which means blacks) to be equal.

    The 14th Amendment is a good step towards color blindness, but since racism was legal and at times encouraged by our laws and our constitution for most of our history, at least as interpreted by the Court, I don’t think we can say “return” to color blindness. This ruling perpetuates racism consistent with separate but equal and other racist shameful decisions of the past.

    We can’t “return” to a place we have yet to reach.

    • #12
    • June 25, 2013, at 5:18 AM PST
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  13. Skyler Coolidge

    Howellis also asked, “What I can’t understand is why university administrators are so anxious to continue the charade? Why do they want to populate their schools with unprepared students?”

    Because university administrators do not see themselves as educators. They see their role as to increase their school’s power to attract money in the form of tuition and donations.

    • #13
    • June 25, 2013, at 5:24 AM PST
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  14. James Gawron Thatcher

    John,

    Maybe a little history will help. For me the issue runs like this.

    The 1964 Civil Rights Act established a race neutral standard of behavior. The very first affirmative action law established only a streamlined approach to bring forward race neutral lawsuits. Finally, in the early 70s the first true quota-based decisions were brought down. This established the precedent of government induced reverse racism. This mentality spread rapidly to reverse sexism, and finally to what only can be called reverse heresy or the secular attack on religion.

    Justice Thomas well remembers and understands the evolution. During his tenure at EEOC he doubled the number of cases brought through the system. However, he expressed no desire to expand the quota-based reverse racist structure. This alone brought him under a vicious attack by the left.

    Ecclesiastes 9:11 “I returned, and saw under the sun, that the race is not to the swift, nor the battle to the strong, neither yet bread to the wise, nor yet riches to men of understanding, nor yet favour to men of skill; but time and chance happeneth to them all.”

    Best I can do.

    Regards,

    Jim

    • #14
    • June 25, 2013, at 6:41 AM PST
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  15. MBF Member
    MBF

    University of Texas, right? I thought we actually did win elections in Texas. So why doesn’t the state legislature nip this policy in the bud themselves?

    • #15
    • June 25, 2013, at 7:06 AM PST
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  16. Skyler Coolidge

    Prof Yoo wrote, “returning the nation to the color-blind principles of the Declaration of Independence and the Constitution.”

    I had to pick my jaw up after reading that one. I certainly agree that color blindness for race “should” be a part of the Constitution, but 5/8 rule and slavery clearly points out that it wasn’t back then.

    • #16
    • June 25, 2013, at 7:15 AM PST
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  17. Salvatore Padula Inactive
    Mark Belling Fan: University of Texas, right? I thought we actually did win elections in Texas. So why doesn’t the state legislature nip this policy in the bud themselves? · 26 minutes ago

    Fair point.

    • #17
    • June 25, 2013, at 7:34 AM PST
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  18. MBF Member
    MBF
    BrentB67
    Mark Belling Fan: University of Texas, right? I thought we actually did win elections in Texas. So why doesn’t the state legislature nip this policy in the bud themselves? · 7 hours ago

    We did have the Top 10% method here for a while with mixed success.

    Two reasons we are still addressing this issue:

    1. You didn’t use the full name: University of Texas at Austin. With Austin being the operative word.

    2. University – ’nuff said. · 5 hours ago

    I’m not sure why that matters. The legislature is controlled by Republican representatives, not Austin professors, correct?

    So why can’t they pass a simple law prohibiting racial discrimination in all state institutions?

    • #18
    • June 25, 2013, at 7:59 AM PST
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  19. Cato Rand Reagan
    Skyler: Prof Yoo wrote, “returning the nation to the color-blind principles of the Declaration of Independence and the Constitution.”

    I had to pick my jaw up after reading that one. I certainly agree that color blindness for race “should” be a part of the Constitution, but 5/8 rule and slavery clearly points out that it wasn’t back then. · 54 minutes ago

    LOL. I think you got him. But it was a 3/5ths rule, not 5/8ths.

    • #19
    • June 25, 2013, at 8:12 AM PST
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  20. Man With the Axe Member

    I’m disappointed, but not pessimistic. Disappointed that the court took a whole year to throw it back when they could have done that the first Monday in October.

    When the case comes back in a year or two, assuming the court’s composition has not changed, I would expect a 5-4 decision overturning Grutter, although it might not be phrased that way.

    The key point, which Justice Thomas makes eloquently, is that diversity is simply not a compelling interest.

    What I can’t understand is why university administrators are so anxious to continue the charade? Why do they want to populate their schools with unprepared students?

    • #20
    • June 25, 2013, at 8:55 AM PST
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  21. Man With the Axe Member

    The founding documents make no reference to race or color. Although the 3/5 clause compromises on how “other persons,” i.e., the slaves, are to be counted for representational purposes, the 14th Amendment is the essence of purposeful constitutional colorblindness. 

    • #21
    • June 25, 2013, at 8:58 AM PST
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  22. BrentB67 Inactive
    Mark Belling Fan
    BrentB67
    Mark Belling Fan: University of Texas, right? I thought we actually did win elections in Texas. So why doesn’t the state legislature nip this policy in the bud themselves? · 7 hours ago

    We did have the Top 10% method here for a while with mixed success.

    Two reasons we are still addressing this issue:

    1. You didn’t use the full name: University of Texas at Austin. With Austin being the operative word.

    2. University – ’nuff said. · 5 hours ago

    I’m not sure why that matters. The legislature is controlled by Republican representatives, not Austin professors, correct?

    So why can’t they pass a simple law prohibiting racial discrimination in all state institutions? · 2 hours ago

    They did, the 10% rule. I supported it, but it caused other unintended consequences.

    There is Texas and then there is Austin and a University is still a University.

    We still have a battle every two years about carrying guns on campus and call back the legislature to debate when to try and ban abortions.

    It is a good thing our legilature only meets every other year because for 140 days it turns into disfunction junction.

    • #22
    • June 25, 2013, at 10:18 AM PST
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  23. Lavaux Inactive

    Why won’t the Court save us from its own racist precedents, and how will winning elections save us from the Court’s racist precedents? In my view, the only way the Court will strike down affirmative action is if Americans of pallor start benefitting from it at the expense of dusky Americans.

    Regarding the 3/5 clause arguments above, the ignorance and lack of understanding demonstrated therein makes me sad and hopeless.

    First, human beings often do what they profess to believe wrong, but the misdeed does not disprove the belief. For example, I profess the belief that lying is wrong, yet I still lie on occasion. Does this disprove my belief or prove my human nature? It does the latter, obviously, but so few Americans nowadays seem to understand this.

    Second, the 3/5 clause reduced the power of slave states in Congress because it reduced their population. You see, slave states counted their slaves to increase their populations and thus Congressmen. Opponents to slavery proposed the 3/5 clause to counter this practice. For God’s sake, get a clue! How do we defeat the satists if we’re as ignorant as they?

    • #23
    • June 25, 2013, at 11:44 AM PST
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  24. Skyler Coolidge

    Howells, I guess I owe you an apology. I don’t see what I thought I saw earlier.

    • #24
    • June 26, 2013, at 5:09 AM PST
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  25. MBF Member
    MBF
    BrentB67
    Mark Belling Fan
     

     

    So why can’t they pass a simple law prohibiting racial discrimination in all state institutions? · 2 hours ago

    They did, the 10% rule. I supported it, but it caused other unintended consequences.

    Can you explain the “10% rule”, and why it did not apply to the case that was before the supreme court?

    • #25
    • June 26, 2013, at 7:39 AM PST
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  26. Man With the Axe Member
    Skyler: Howells, I guess I owe you an apology. I don’t see what I thought I saw earlier. · 2 hours ago

    Much appreciated. Thanks.

    • #26
    • June 26, 2013, at 7:57 AM PST
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  27. Man With the Axe Member
    Skyler: Howellis, that is one of the most disingenuous statements I’ve ever seen on ricochet. To pretend that the 3/5ths rule was resisted by southern states because of their sense of egalitarian feelings for their slaves astounds me, and were they alive now, I think the founders would have been equally astounded that you ascribe such egalitarianism to them….

    …I don’t think we can say “return” to color blindness. This ruling perpetuates racism consistent with separate but equal and other racist shameful decisions of the past.

    We can’t “return” to a place we have yet to reach. 

    I don’t know what statement you are finding to be disingenuous, because it sure isn’t the one I made. I did not explain the 3/5 compromise as egalitarian, nor did I speak of a “return” to colorblindness.

    Slave states wanted to have more representation. Free states wanted to limit them. They compromised. Egalitarianism had nothing to do with it, nor did I say it did.

    The 14th amendment was meant to ensure that race would not be an issue in law enforcement. I did not say it was a return to anything. 

    Please read more carefully.

    • #27
    • June 26, 2013, at 9:54 AM PST
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