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November 3, 2022

Lucky for us, two of our favorite legal analysts have expounded on the two cases that went before the Supreme Court on Monday, examining the principle of affirmative action as applied in 2022 –- that is to say, at the expense of high-achieving Asian students.

Yes, that’s “cases,” plural, both brought by the organization Students for Fair Admissions, one against the President & Fellows of Harvard College and the other against the University of North Carolina.

Law professor Jonathan Turley was there in the crowd as history was made in October 1977, when the Supreme Court heard the case of Regents of the University of California v. Bakke, regarding the constitutionality of racial quotas at a California medical school. At that time, he was a teenage congressional page.

In Bakke, SCOTUS ruled against affirmative action in a fractured decision (no one clear majority opinion), but the way it was written, it didn’t resolve the issue. Turley calls it “extremely nuanced,” as it didn’t bar the use of race entirely but said it could be one of a number of diversity elements. Later precedent was equally unclear.

In that case, the plaintiff was white; this time, it’s the Asian community fighting discrimination. Observers had noticed that at Harvard University, the percentage of incoming students who were Asian remained oddly consistent from year to year, between 18 and 20 percent. And they believe this is due to a clever four-category ranking system that obscures racial preferences. In addition to being scored for academic achievement, extracurricular activity and athletic participation, students are also given a “personal” ranking.

They’re subjectively assessed on such traits as likability (!), courage and kindness.

So, why is it that only 22 percent of Asian American students received a ranking of 1 (“outstanding”) or 2 (“very strong”) when over twice that percentage of African American students received those scores? Two explanations make sense to us: either the admissions people are trying to jigger the result with the “personal” rating or they consistently do just “like” the African American students more than they “like” the Asians. That sounds racist either way, actually.

Some justices see racial quotas as completely at odds with the Equal Protection Clause and also the Civil Rights Act. Recall that Chief Justice John Roberts has said, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” And in 2006, he wrote, “It is a sordid business, this divvying us up by race.” And indeed it is.

But to set a clear line, the justices will have to overturn the Grutter v. Bollinger decision of 2003. At that time, a 5-4 Court upheld the University of Michigan’s admissions policy that was merit-based but still used race as a “plus factor.” In Gratz v. Bollinger, which involved UM’s College of Literature, Arts and Sciences, a 6-3 court rejected the use of a “threshold” for race BEFORE individual considerations were applied. (See, more “nuance.”)

As Turley phrases it, “The Court...has been in the business of race-based admissions criteria for 44 years.”

The author of the Grutter decision was Justice Sandra Day O’Connor, who wrote that the Court “expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.” It’s been 20 years. Ironically, before “wokeness” hit college campuses, I think we were just about there.

That’s because society’s goal in defeating racism used to be ensuring equal opportunity and equality under the law for every person regardless of skin color. That’s what it still should be –- without penalizing anyone for hard work, intelligence and achievement. But today, instead of being encouraged to reach that goal, we’re called racist for even desiring it and are confronted with the very different concept of “equity,” which means equality of outcome for various groups and is an excuse for using blatant racism to achieve that goal. In the interest of “equity,” if Asians are doing better than other groups, they have to be pulled back. That's right:  being "woke" --- being "anti-racist" --- is itself extremely racist and completely at odds with the Equal Protection clause.

Margot Cleveland is definitely on the same side as Judge Roberts when it comes to racial discrimination in admissions. She offers some background on the case...

Students for Fair Admissions Inc. is an organization “defending the right to racial equality in college admissions.” Its members include Asian American students who were not accepted at Harvard University and the University of North Carolina. As Cleveland describes it, both universities “consider the race of applicants, with the schools advantaging American Indian, Hispanic and black applicants to the disadvantage of Asian American students.”

They’ve been litigating this since 2014. SSFA sued the University of North Carolina for violating the 14th Amendment’s Equal Protection clause, which provides that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” UNC is a state school, so that provision applies. But since Harvard is a private university, it doesn’t. Still, Harvard accepts federal funding –- quite eagerly, I would assume, even with its $40 billion endowment –- so it’s subject to Title VI, a federal law stating, “No person in the United States shall, on the ground of race, color or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”

Legal precedent has established that even though two different laws are being used in these suits, the same legal standard would apply to both.

The SSFA argues that Grutter was wrongly decided and should be overturned. But even if it isn’t, they say, the universities violated the standard set by it, giving race an “undue” influence by making being Asian a “minus” and by adopting “impermissible racial stereotypes” about Asians such as that they are “timid, quiet, shy, passive, withdrawn, one-dimensional, hard workers, perpetual foreigners, and ‘model minorities.’” Wow, if that’s what these universities have been doing, that is about as racist as it gets.

As Cleveland explains, lower courts essentially had to rule in favor of the universities because only the Supreme Court can reverse its own decision in Grutter. So both cases were appealed and the Court decided to consolidate them and hear them together.

The universities argue that “the Framers of the 14th Amendment understood that race may be considered to advance overriding governmental objectives.” (Aside:  we've been subjected to far too many "overriding governmental objectives" lately.)  But Cleveland believes their argument will fail with this Court. If it does, she says, then we “return to the true meaning of the 14th Amendment: that equal means equal –- not equal, plus or minus.” May it be so.

Here are some choice comments made by the justices to the attorneys presenting the case.

We also like Greg Gutfeld’s take on affirmative action, which is that it has helped more unqualified people get ahead than the name “Biden.”

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Comments 1-8 of 8

  • Jim Greer

    11/05/2022 01:21 PM

    I guess l just don’t see how using race in any way to determine preference can not be considered discrimination. So count my vote with Judge Roberts. And by the way count gender preference the same way!

  • Ed Thompson

    11/04/2022 01:28 PM

    Affirmative action is a slap to the face of anyone who has ever been ignored for a promotion after working in a position successfully and putting in the work and hours only to be passed up for someone who is a different race or gender or just a friend of the bosses . It is one of the good things about unions where seniority has ended the practice of putting brown noses in places of higher wages over the person who was next in line for a promotion. And when you start hiring based not on education or solid qualifications but on something as flimsy as looks or what or who they are, you put your business in jeopardy of failure. Hiring people or promoting people should be based on their quality or their abilities or seniority in cases of at work already. It is the one good thing about a union for anyone who has never been in a union work place. They are not without their own sins either but a union is still a good idea. Affirmative action is a horrible practice for everyone. Ask the N Y FD how it hurt them!

  • Richard Kurkowski

    11/04/2022 10:49 AM

    Mike: Always enjoy your newsletters. I am just a hick from the sticks retired farmer. I am on a mission about water. It would be great to visit with you, but I doubt that is possible. Always look forward to your interviews with Tucker and others. I know you are busy. God's Blessings, Richard

  • Lynn M. Roberts

    11/03/2022 05:25 PM

    It seems that just renaming "equality" to "equity" by some should change the law for all. To me this is just plain highjacking!

  • Lori Lake

    11/03/2022 05:05 PM

    Affirmative Action is reverse discrimination. The current suits involve Asian Americans, but no one talks about White Americans. I know folks that were actually turned down for job advancement and others for school admission because they are white. They were told to their face that a minority had to be hired. I don’t want to find out on the operating table that my doctor got in to medical school because of race and not ability.

  • Doyle Pruitt

    11/03/2022 03:55 PM

    Allowing an influx of Chinese and other students from countries, that are our projected enemies, is educating possible enemy agents, but not allowing people from Japan South Korea and other countries that have been thoroughly investigated should be allowed. We need to be careful about the people we allow into our country, as well as the people we regulate. SCOTUS should keep this uppermost in their minds when making laws for universities.

  • John J Carse

    11/03/2022 02:59 PM

    When I was at the College of Wooster in Ohio 1968-72, We were told that Black students had to be a certain percentage of the student body. I asked Charles ( A Black member of our 'Section'. What we were called because we were not allowed Fraternities) what if a Black student qualifies to go to Wooster but our Black % was full up. Is not that reverse Discrimination? He said 'yes it is screwed up'.

  • Mike Tierney

    11/03/2022 11:57 AM

    Are you ready to apologize for the stupid comments you made about Paul Pelosi? You have become a liar almost equivalent to Don Trump. Promoting on line conspiracy stuff is reprehensible.
    You owe Nancy and Paul an apology.