IT'S NOT AS BAD AS "PLESSY V FERGUSON" (MAYBE) - THE END OF AFFIRMATIVE ACTION

The Supreme Court ruled Thursday that race-conscious admissions programs at Harvard and the University of North Carolina are unconstitutional, once again demonstrating this court’s complete disregard of stare decisis as they overturned decades of precedent and three previous SCOTUS decisions that ruled the exact opposite way.

“Harvard’s and UNC’s admissions programs violate the Equal Protection Clause of the Fourteenth Amendment,” Chief Justice John Roberts wrote for the majority. This harkens back to the way the Court used the Fourteenth Amendment prior to the court revolution in 1936 to declare corporations “persons” and to rule in the exact opposite to what the amendment meant in the “due process” clause.

Justice Sotomayor took direct aim at the majority for feigning colorblindness in a way that will inevitably drain colleges and universities of minority students.

“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,” she writes. “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.”

Justice Sotomayor was clear in her dissent: “The devastating effect of this decision cannot be overstated.” She continued, “Equal educational opportunity is a prerequisite to achieving racial equality in our nation,” adding, “The court’s precedents authorizing a limited use of race in college admissions are not just workable — they have been working.” She said that, by upsetting the existing framework, the court had established “a set of novel restraints that create troubling equal protection problems and share one common purpose: to make it impossible to use race in a holistic way in college admissions, where it is much needed.”

Justice Sonia Sotomayor has credited affirmative action with opening the door for her to attend elite universities. “I am a product of affirmative action,” she has said. In her dissent, she pushed back against Justice Thomas, writing: “The Equal Protection Clause of the 14th 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 emphasized her view that the “limited use of race has helped equalize educational opportunities for all students of every race and background and has improved racial diversity on college campuses.” She said that “progress has been slow and imperfect,” but that “race-conscious college admissions policies have advanced the Constitution’s guarantee of equality and have promoted Brown’s vision of a nation with more inclusive schools.”

She becomes particularly sharp when knocking down the majority’s characterization of the Brown v. Board of Education litigation. “The Court’s recharacterization of Brown is nothing but revisionist history and an affront to the legendary life of Justice Marshall, a great jurist who was a champion of true equal opportunity, not rhetorical flourishes about colorblindness.”

During some of her more scathing criticism which she read from the bench, Justice Thomas, who sits directly to her left, fidgeted with his glasses, and Chief Justice Roberts shot her periodic glances. Toward the end, she said several times that the pursuit of racial equality would go on “despite the court.” She concluded, “Society’s progress toward equality cannot be permanently halted.”

Roberts spent considerable time critiquing the liberals’ dissents, at one point saying of Sotomayor’s position that the programs should continue: “That is a remarkable view of the judicial role - remarkably wrong.”

But it’s Justice Jackson’s dissent that speaks the loudest to anyone who is truly listening. She begins by writing: “Gulf-sized race-based gaps exist with respect to the health, wealth, and well-being of American citizens. They were created in the distant past, but have indisputably been passed down to the present day through the generations. Every moment these gaps persist is a moment in which this great country falls short of actualizing one of its foundational principles—the ‘self-evident’ truth that all of us are created equal.” “With let-them-eat-cake obliviousness, today, the majority pulls the ripcord and announces ‘colorblindness for all’ by legal fiat,” she writes. And then, her ringing criticism of the majority: “Deeming race irrelevant in law does not make it so in life.”

While the majority knocked down the schools’ use of race as one of many factors in determining eligibility, Roberts allowed for some consideration of applicants’ race in the process:

“Nothing prohibits universities from considering an applicant’s discussion of how race affected the applicant’s life, so long as that discussion is concretely tied to a quality of character or unique ability that the particular applicant can contribute to the university.”

Sotomayor dismissed Roberts’ attempt to project moderation, calling it a “false promise to save face.” “No one is fooled,” she wrote.

Michelle Obama wrote in a statement, “My heart breaks for any young person out there who’s wondering what their future holds — and what kinds of chances will be open to them.” She noted that as one of the few Black students at her college, “I sometimes wondered if people thought I got there because of affirmative action. It was a shadow that students like me couldn’t shake.” But she said affirmative action “helped offer new ladders of opportunity for those who, throughout our history, have too often been denied a chance to show how fast they can climb.”

President Obama also issued a statement: “Like any policy, affirmative action wasn’t perfect. But it allowed generations of students like Michelle and me to prove we belonged. Now it’s up to all of us to give young people the opportunities they deserve — and help students everywhere benefit from new perspectives.”

After the Court surprised us all in recent weeks with decisions that supported democracy by keeping the Voting Rights Act Section 2 alive, people wondered if perhaps the court was reacting to the overwhelmingly negative public reaction to Dodd, where for the first time ever, the court took away a constitutional right, coupled with the negative publicity about Clarence Thomas and Samuel Alito and the Billionaire Boys Club, and might be returning to “reasonable” decisions.

This decision on affirmative action shows where this court is at. If there is any shift on the Court, that shif is that it is pulling back from giving goodies to every rightwing idiot who has an ideological fixation and servicing every electoral need of the Republican Party. The blowback and backlash may have made the costs of that kind of bust-out jurisprudence too high. Rather, this court will now concentrate on the core stuff they really care about. Affirmative action has been one of the central half dozen fixations that the conservative judicial movement has cared about for decades. They have the power to get rid of it and they did it. It’s that simple, and so long as this 6-3 majority exists with half of them being far right wingnuts (Thomas, Alito and Gorsuch), they will take their opportunities to achieve their lifelong dreams whenever they find them. Depend on it.

While the majority knocked down the schools’ use of race as one of many factors in determining eligibility, Roberts allows for some consideration of applicants’ race in the process.

“Nothing prohibits universities from considering an applicant’s discussion of how race affected the applicant’s life, so long as that discussion is concretely tied to a quality of character or unique ability that the particular applicant can contribute to the university.”

As President Biden and several others pointed out today in response to this decision, “Affirmative Action” has never meant what the Right has always claimed it does, that it is a way of giving places to the unqualified “Others” rather than to the “Qualified Applicant.” In fact, every applicant has to meet the school’s admissions standards in terms of grades and other factors. Affirmative Action has meant making the playing field fair for all those who are qualified to step onto that field.

“Affirmative action” has always existed, and here is how I know it will work in my own family three years from now:

My nephew has been interested in the space program for as long as he’s known about it. He looks at the space program the way I look at airplanes. When he was nine, he met Buzz Aldrin and engaged him in a 30-minute conversation about Apollo-11, that had Aldrin interested for every minute. It was around then that he declared he wants to go to Cal Tech.

Cal Tech is an extremely competitive school to get into, no matter who you are.

And so, when it comes time for him to make his application, his uncle - who happens to be very well-known in the fields he is involved in - will arrange a meeting with a fellow scale modeler and old friend for the past 30 years. This old friend is Ed Henry, who was team leader for the JPL Mars Lander program that sent Spirit and Opportunity to the red planet, where they lasted years longer than expected or planned. Ed’s a legend at Cal Tech/JPL. A letter of recommendation from him will Mean Something. With the grades he gets, and all the other things he does, my nephew will have a good shot at going to Cal Tech, and the Space Program will benefit from having another brilliant mind join the ranks of brilliant minds.

Notice how that works: talented young student has a relative who knows someone through “non-standard means” who can provide extraordinary help to achieve goal. That’s the way it has always worked, traditionally.

Nowadays, due to 50 years of Affirmative Action, some bright young black student whose family lives here in Baldwin Hills might just happen to have an Uncle (or an Aunt!) who went to Cal Tech, who knows Ed Henry, and might also be able to put things together for a similar letter of recommendation. And another brilliant young mind will join the others.

But what about some bright young black student whose family lives in Watts? Fat chance anybody that kid knows knows anybody who’s even heard of Ed Henry.

And “Affirmative Action” will continue to work for those for whom it has always worked. The ones who don’t actually need the help. And the class-based nature of Success in America will continue to operate as it has.

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