Supreme Court poised to outlaw racial discrimination, again

The Supreme Court on Monday considered the arguments of Harvard and the University of North Carolina justifying their racial discrimination in admissions. The schools will probably lose.

The schools argue their racial discrimination (they refuse to call it that, of course) is just one of many factors they consider in admissions. But the data show it’s by far the most important one. For example, at UNC a white person with a given set of test scores, grade point average and other factors, with 10% chance of getting admitted, would have a 98% chance with the same qualifications if he were black.

At Harvard, the case was brought by an Asian student group. The data show that at Harvard an Asian needs an SAT score about 400 points higher than a black person with comparable other qualifications. That 400-point difference is huge. It’s the difference between an excellent student with a score of 1500 and an average one with a score of 1100, or a good student with a score of 1200 and a poor student with a score of 800.

Harvard explains away the apparent discrimination against Asians by pointing to their lousy performance in the interviews. The interviewers say they have bad personalities. It’s not happenstance that it’s usually the interview where Harvard learns that they’re Asian.

Justice Samuel Alito was all over this. He asked “What accounts for” the lower personal score that Harvard typically assigns to the Asians? The school’s lawyer did what lawyers often do when they don’t have a good answer. He gave a long one. He even talked over Alito’s attempt at follow up questions to pin him down, to the point that the Chief Justice intervened to politely tell the lawyer to shut up and let Alito speak.

It’s rare for the Chief to rebuke a lawyer in oral argument, and it’s rare for the lawyer to need a rebuking. One of the first things a lawyer learns in a courtroom is never, ever, under any circumstances should you talk when the judge is talking unless a fire breaks out.

Both schools claim they don’t have racial quotas. Facts uncovered in the cases prove that to be a lie. They have numerical guidelines for the racial composition of the admitted class.

The last big Supreme Court case to consider college affirmative action, as they called discrimination in favor of races that had been discriminated against in the past, was a 2003 decision written by Justice Sandra Day O’Connor where she upheld the discrimination but went on to declare that it should no longer be necessary 25 years from then.

We’re now closing in on 25 years from 2003, and there’s not the slightest indication that we’re moving away from affirmative action. If anything, it’s more entrenched than ever. In evaluation and advancement, society has moved away from merit, and toward skin color.

Justice Brett Kavanaugh suggested that such racial discrimination is “potentially dangerous” apparently because it brews racial strife, and “must have a logical end at some point.” Justice Amy Coney Barrett asked the lawyer for UNC, “When is your sunset? When does this end?”

The lawyer would not say when, because everyone now knows that their honest answer is never.

The schools argue that the learning experience of students is enhanced when the student body is “diverse.” How a student’s education is enhanced by having a classmate with a given skin color is something they gloss over.

Justice Clarence Thomas was skeptical about the value of so-called diversity: “I’ve heard the word ‘diversity’ quite a few times and I don’t have a clue what it means.” He was being generous. He knows that, to the schools, the meaning is raw skin color.

To defend the use of skin color under the guise of diversity, the schools imply that skin color is a proxy for backgrounds, which are legitimate considerations. Whites are assumed to come from privileged upper-class homes, while blacks are assumed to come from disadvantaged poor homes. Putting a thumb on the scale of the black applicants is therefore an indirect way to both diversify the student body and to even out the applicants’ privilege levels. 

OK, so why not just discard the proxy of skin colors and consider directly the applicants’ backgrounds? It’s not fair or justifiable that Barack Obama’s kids get preferential admission to Harvard on the grounds that they’re black and being black is a proxy for a rough and tumble background, since they aren’t from a rough and tumble background at all. So why do they get preference over the public school kids of a poor single white mother on the wrong side of the tracks?

The answer – the only honest answer – is because they’re black. Period.

Chief Justice John Roberts anticipated these cases back in a 2007 case where he said “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

I’ve disagreed with Roberts occasionally. His concern about the prestige and standing of the Court sometimes seems to the detriment of the litigants before the Court at any given time. But in these cases on Monday, he absolutely annihilated Seth Waxman, the prominent Supreme Court lawyer representing Harvard:

Waxman: “Race, for some highly qualified applicants can be the determinative factor, just as being, you know, an oboe player in a year in which the Harvard-Radcliffe orchestra needs an oboe player will be the tip”

Roberts: “We did not fight a Civil War about oboe players. We did fight a Civil War to eliminate racial discrimination, and that’s why it’s a matter of considerable concern.

For the somber setting of the United States Supreme Court, this qualifies as a smackdown. 

Expect a strong 6-3 decision authored by the Chief Justice. Racial discrimination is legally and morally repugnant. We cannot get past it by administering more of it.

Glenn Beaton practiced law in the federal courts, including the Supreme Court

21 thoughts on “Supreme Court poised to outlaw racial discrimination, again

  1. I finally have a relevant comment! Way back in 1999 myself and another middle class white kid took our SAT’s, he was captain of the football team, very ingrained into the National Honors Society, and a model student with 3.9 gpa. We had identical 1260 scores, but I held a special card: I identified on my demographic survey as Native American (before it was fashionable to identify in a way you aren’t), while we was only white. He was sent letters from Marquette, St. Cloud State, and U of Minnesota. I was sent letters from Columbia, Brown, Harvard and Yale imploring me to apply! As a counter cultural rebel, I threw those letters away and applied to be an Apprentice Millwright in the Union with my father. If only I knew what Liz Warren knew way back then! True Story from a small Wisconsin town made famous by K. Rittenhouse.

  2. Imagine how much greater life would be for Harvard and UNC (faculty, administration and student body) if they didn’t have to administer to this diversity lodestone – concentrating only on admitting the brightest and most promising students. That these schools willfully choose (and defend) this intellectually and morally unjustifiable policy speaks to the raw political power of virtue signaling. “Because if we don’t, they’ll call us racist.”

  3. I though we were going to dismantle racial preference when I was in college at UC Davis and a white med school applicant sued because he felt he was turned down by the school because of racial quotas . The court agreed and Davis admitted him the next year. But, it has only gotten worse.

    I tutored freshmen black students when I was in college. I guess I could get pilloried for saying that not being able to read is not new. It isn’t. It was hard to watch them struggle with the basics, not just reading. Not sure if they graduated or not. Shoot, the valedictorian from my high school flunked out the first quarter.

    I also got the opportunity to assist a black officer at Air command and Staff College with his writing. His wife, when she was on active duty, had done all of his writing for him as they had equivalent clearances. She was now out and could only write his unclassified stuff. So, it fell to others to help him with the classified. The only way I could help him was to totally rewrite the paper. He had to do the research. I was not doing that. He was deemed to pass at all costs, even if another officer had to do his work. This trend continued in each of his subsequent seminars. Those of us assigned to help him talked about it ourselves but could do nothing but do his work or receive black marks ourselves.

    Throughout my career I helped the folks who worked for me to improve their skills, irrespective of racial background. The only one who pushed back was a black technical sergeant who couldn’t write performance reports for his staff. I offered to help him and he threatened me with racial discrimination. A black female officer on my staff told him to pack it in. He couldn’t write. She’d have the same discussion with him if he worked for her. If he filed a report, she’d fight him on it. I wrote the reports for his folks after that. They didn’t need to be penalized because he couldn’t write.

    Additionally a white kid from Appalachia who worked for me was writing bad checks. The black squadron section commander and black first sergeant wanted to discharge ”the cracker”. I called them all in to discuss the matter, leaving race out of it for the time being. The kid had no idea how to handle a checkbook. He was pretty unsophisticated in general. But we could help with that. His parents never used a bank. They stored their money in various places in the house and used cash. The USAF required direct pay to a bank account. He was clueless. Since he still had checks, he thought he could write them. They all got homework, albeit in different areas.

    We don’t do anyone of any ethnicity or background favors by reducing standards and expectations. It will be interesting to see how the Supreme Court rules.

    • In my estimation, the Bakke decision created something worse than what existed before “Bakke”. Before “Bakke”, it was outright quotas. Fine, give the disadvantaged groups their quotas and let the rest determine how their group is drawn without any outside interference. Thanks to “Bakke” outreach to disadvantaged whites was effectively banned. It’s something we should at least be free to discuss, and I’m going to go into my own disturbing story.

      Then there’s Alan Bakke himself. Bakke was a moderately wealthy young, although I think he made his money himself. He was deemed well-qualified for medical school admission and he could afford to finance his own Supreme Court case. He could have gotten into medical school somewhere, or gone to an offshore medical college. He didn’t need to muck things up bringing the wrong case to the high court.

      Bakke was an exemplary person in many ways and his motives for wanting to go into medicine were good. Otherwise, he also seemed to exemplify some of the obtuse characteristics attributed to successful Middle American white males. His obliviousness was epic. Sorry about being so forthright, but I was put more out of business after “Bakke” than I was before.

  4. So damn good. I’m an American Indian (comanche) who grew up in a rough and tumble childhood. I went to the University on a Bureau of Indian Affairs scholarship. The 96 people that lived in my college housing were no better or worse by my race. In fact 40 years later I bet that the majority of them never knew.  Larry LeBarre 

    Sent from AT&T Yahoo Mail for iPhone

  5. By 1990 the word “diversity” had become a god — a self-evident, res ipsa loquitur, indisputable, inarguable good that trumped all other goods in educational theory and practice. No one asked, as Clarence Thomas did today, what the net benefits of diversity in education are exactly, any more than Europeans asked how they were better off for admitting millions of Muslim immigrants. Consequently, like Juggernaut, the word has steamrolled common sense, meritocracy, and the the most basic notions of justice ever since.

    C.S. Lewis remarked that, “If you are on the wrong road . . . . the man who turns back soonest is the most progressive man.” If the Court finally turns us back, as you predict, I doubt that it will be considered “progressive.” Call it what you will, it will have restored right reason to human endeavor.

    • It will restore the possibility of “right reason.” Is some kind of mechanistic, check-the-boxes meritocracy really the best system. Or even really meritocracy?

      These are questions “right reason” needs to address.

      • How else does one predict an applicant’s probable performance than by looking at the boxes he or she has checked?

        Do I want a physician who hasn’t passed a course in organic chemistry? Do I want a police officer with such poor writing skills that his or her police reports will likely be tossed out in court? Do I want a teacher with more “credentials” in Education than in his or her subject area?

        No. Show me your proficiency in prerequisite fields of knowledge, and than I’ll be happy to consider how your background and other human qualities may constitute “value added.”

  6. Utilizing racism to combat racism just results in more racism.

    Affirmative action just creates more negative reactions … SCOTUS needs to strike this down as unconstitutional, ASAP.

  7. Pingback: What We’re Reading: Red Wave Crashing, Climate And Crisis, End To Quotas? . . . And More – Issues & Insights

  8. I hope that SCOTUS eliminates this affirmative action (“AA”). Years ago–25 or so-I mentored a black young man from CT. Wonderful guy. He had a Master’s Degree in City Planning from Yale… and chose to get a law degree from Northwestern.

    He noted that everyone ASSUMED that he got in on AA… when, in fact, he got into law school based upon merit. HE HATED AA. He said that he did the high hurdles just like the others (rather than the low hurdles or the no hurdles).

    AA has destroyed the lives of bright blacks who cannot compete at an Ivy League school (due to lousy HS preparation) but can do just fine at most major universities.

    How come everyone loves the NBA and the NFL that COMPETE PURELY ON MERIT but the rest of America needs a special edge?

  9. There are things to be said in favor of AA. It has helped some and hurt some, but all things considered, I have to side with conservatives here; by now, it seems to be doing more social harm than good. Shamefully, some 150 years after the Civil War, blacks are still disadvantaged and society is still structured to keep them that way (though not as overtly and not as much). But AA doesn’t seem to solving the problem, is creating new ones for other races, and may even be counter-productive for blacks. Gotta do with the conservatives on this one.

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