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Free Speech and Fair Play are a Bitch
If there were two lessons from the high school civics class most Americans seemed to skip that they should learn now they are: rights are for everyone and free speech sometimes protects speech you don’t like yourself. Luckily, the Supreme Court recently offered America a tutorial on both topics.
In Students for Fair Admissions, Inc. v. President & Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina the Court made the common sense ruling that discrimination of some colors of people is a poor way to fix discrimination of other colors of people. What woke mind could possibly conceive that the 14th Amendment’s equal protection under the law meant treating a large portion of the population grossly unfairly at the expense of another? Kind of a common-sense argument but one America needed to travel all the way to the Supreme Court to resolve.
Starting back with 1979’s Bakke and largely confirmed by the Supreme Court in 2003’s Grutter, America’s higher education institutions decided it was they who would fix systemic racism in America by offering preferential treatment by race, specifically, white and yellow colored students were considered less deserving of a good education at say Harvard, and had to sit out the Ivy League so that some black and brown kids could take their places. The word for this back in the day was not racism (which it was) but “affirmative action.” It would right wrongs. This “reverse discrimination” was allowed through some clever word play because its goal of a diverse student body was considered a “compelling state interest” that overshadowed other compelling interests, such as equal protection for all under the law. It was sanctioned by the Supreme Court of its day, but only as a temporary solution; Justice Sarah Day O’Conner in one of the key cases upholding affirmative action wrote, “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”
It didn’t seem to work, short or long term, in significantly changing society, if black and brown activists of 2023 are to be believed. Decades of pushing aside white and yellow kids (the former privileged because once upon a time other unrelated white people owned slaves and the latter just too damn hard working and smart) for black and brown did not seem significantly change society. There are of course individual examples, both fake (blacks or browns who would have succeeded in any system) and occasionally real, true by-their-bootstraps stories once they got that helping hand.
“When affirmative action was conceptualized, it was to right past wrongs,” one commenter said. “Then, it became sort of endless. It wasn’t just African Americans. It was Native Americans and Hispanics. And then it was women, LGBT, etc., and that wiped out the moral imperative of it a little, because diversity is not quite as strong a claim as correcting past wrongs.”
There were other problems. Letting someone into Harvard is not the same as him succeeding at Harvard. I learned that in high school too, by the way. If some program had sent me to an Ivy school at age 18 I would have failed miserably, coming out of a non-rigorous but nice enough Ohio high school where upon graduation I had neither read one classic book nor written one proper research paper. I think Harvard expects you to know that kind of thing and white as I am, I would have floundered. I’m sure they have some sort of remedial program for their unqualified students but it seems unlikely to make up for many years of half-hearted education before it. And that exposes another dirty little secret about why affirmative action failed; America is divided by class, not race (though the two overlap in a Venn diagram.)
America’s second recent high school civics lesson is you as an individual may not like everything other people use their freedom of speech to say and do; in fact, their deeply held beliefs may run 180 degrees from yours. Protip for exam time: this is the whole point of the First Amendment free speech clause and it was on display in another recent Supreme Court decision, 303 Creative v. Elenis.
The crux of the case is that one side, a web designer, wanted to know what would happen if she refused to produce a hypothetical celebratory wedding page for a gay couple, claiming her religion did not allow her to support same-sex marriage. The couple would have sued because of course they would, likely claiming as a protected class by sex in Colorado, the cake maker must be forced by the government to make the cake they wanted celebrating their nuptials. Lower courts had weighed in in favor, claiming various cake makers, florists, and web designers must be forced to practice their craft (i.e., their expression, their speech) to avoid LGBT discrimination. It was as if one side had more rights than they other and would have resulted in the government of the United States using the threat of arrest or fine to force the web designer to produce speech she was opposed to.
That’s a big no-no in a democracy, compelling speech.
Though the state can demand businesses provide goods and services to all customers in protected categories, it cannot demand individuals engage in speech proclaiming messages that they oppose, such as in web page design. In Justice Samuel Alito’s words, a win for the state of Colorado would mean some businesses that provide custom speech for customers could be forced to “espouse things they loathe.”
This all goes back to 1943’s West Virginia Board of Education v. Barnette when during WWII the Supreme Court held West Virginia could not make Jehovah’s Witness students pledge allegiance to the American flag. The decision contained arguably the most famous finding in American First Amendment law: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein.” The key finding in 303 Creative is the designer is not denying a service on the basis of status of a protected class but instead refusing to engage in speech because she disagreed with its message (Masterpiece Cakeshop failed to yield a definitive ruling and is not relevant here.)
Despite all the hub-bub, the Court correctly applied the broader civics class way of thinking in 2023, focusing on the First Amendment speech clause, and said nothing directly about the more contentious and limited religious aspect of all this, and passed on 2023’s wokist definition of discrimination. Had the recent case involved a Jehovah’s Witness’ web page and not ostensibly something to do with gay rights, you would barely have heard of the matter even though the real significance would have been about the same.
It’s easy to forget most of what you heard in high school, especially in a one-off class like civics. But common sense can get you a long ways. It is easy to write off the Court’s decision in Students for Fair Admissions as discriminatory, with only a little thought that what it did away with — affirmative action — was discriminatory as heck. Same for 303 Creative v. Elenis, which is being promoted by the MSM as anti-LGBT thing when in fact it is an example of how robust our First Amendment is. At the Founding no one could have conceived of a free speech battle between a web designer and gay clients, but that is what the First Amendment expanded to take in. The Supreme Court has not gone rogue, and democracy is not in danger. These two recent cases prove if anything the system is flexible for the times and robust in defending the most basic freedoms a democracy is built upon.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Academic Racism By a Different Name
A decision by the Supreme Court in the case of Students for Fair Admissions v. University of North Carolina/Harvard College is due very soon. It is widely held the decision will do away with or greatly weaken affirmative action in college admissions, removing or dramatically limiting race as a criterion. But far from helping solve the festering problem of race in America, the Supreme Court decision will simply shift the battle from affirmative action to so-called “race-neutral criteria.” This is an already-in-place end run around any end to affirmative action, designed to pretend criteria such as class rank or home zip code are not racial. The theory of racial neutrality in academic decision making holds the use of such “neutral” criteria to create racially balanced classrooms is proper where affirmative action was once called into play to do the same.
At present schools may use race as an admissions criterion as long as it is not the only basis for a decision, with the implied so long as the goal is diversity (good) and not whitewashing (bad). This allowed a nation pretending to strive toward equality to instead enact the opposite, by upholding separate standards based on skin color.
The hypocrisy began with Regents of the University of California v. Bakke, a 1978 Supreme Court case which held a university violated the Equal Protection Clause of the Fourteenth Amendment and Title VI of the Civil Rights Act of 1964 if it made admissions decisions on the “definite and exclusive basis” of race. That bit about “definite and exclusive basis” was crucial—race could be a criteria, but just not the only one.
The Court ruled that a university’s use of racial “quotas” in its admissions process was unconstitutional, but a school’s use of affirmative action to accept more minority applicants was constitutional. In this case, the university’s offense was being too clear; the University of California explicitly held 16 out of 100 admission spots exclusively for black students instead of just putting its thumb on the scale elsewhere in the process and—presto!—filling those slots with black students.
In Grutter v. Bollinger (2003) the Supreme Court upheld the University of Michigan Law School’s admissions policy, which used racial preference (bad) to promote diversity (good.) Black applicants were admitted under different standards than members of every other group. The fudge was again to say that affirmative action is constitutional so long as it treats race as one factor among many, and does not substitute for individualized review of the applicants. But Grutter in 2003 came with an interesting addendum: affirmative action was supposed to be a temporary policy, an imperfect expedient, while society worked out the larger issues. Justice Sandra Day O’Connor wrote, “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest in student body diversity.” Some two decades later with that imperfect expedient likely to be declared unconstitutional, what comes next?
Though the expected Supreme Court decision will focus on university admission, the next battleground will likely be a high school in Northern Virginia. Thomas Jefferson High School for Science and Technology, known to everyone as “T.J.” is considered one of the best STEM high schools in the country. Until about a year ago, the only way to get in was to pass a very competitive entrance exam. Entry into T.J. meant you were a smart kid with the discipline to put in hard hours with no guarantee of success, a perfect definition of those who would also go on to succeed at MIT, CalTech, or an Ivy. However, in the aftermath of George Floyd, this was somehow not enough. As many as 73 percent of students admitted to Thomas Jefferson High School were Asian. Only about two percent of T.J. students were black. T.J.’s school’s principal said “Our 32 Black students and 47 Hispanic students fill three classrooms. If our demographics actually represented those of the county’s public schools, we would enroll 180 Black and 460 Hispanic students, filling nearly 22 classrooms.”
The answer was T.J.’s entrance exam was replaced with “a holistic review” that included “experience factors, including students who are economically disadvantaged, English language learners, special education students, or students who are currently attending underrepresented middle schools.”
In addition, spots for the top students from every public middle school in the area (several of which are predominantly black or Hispanic) were set aside, pushing more black and other non-white and non-Asian students into T.J. Ignored of course is that the term “Asian” itself is yet another racial fudge, that somehow Chinese, Thais, Japanese, Koreans, Filipinos, Laotians, Indians, Bangladeshis, et al., are part of one omnibus racial rejection pile.
It worked, for T.J.: the percentage of Asian American students dropped from 73 percent to 54 percent. The percentage of black students grew from two to seven percent while the percentage of Hispanic students grew to 11 percent from three.
Despite the obvious racially-divided results, and perhaps cleverly anticipating the Supreme Court’s upcoming decision doing away with affirmative action, T.J. is drawing the next line in the sand, claiming its criteria are racially neutral, and emphasizing the fact that admissions officers at the school are not told the race, sex or name of any applicant. Harvard is also toying with the idea of such racially neutral criteria, judging applicants in part now based on likability, courage, and kindness.
So who is kidding who here? In the face of the end of affirmative action, is racially neutral criteria just another workaround to allow schools to patch together a student body racially diverse enough to satisfy 2023’s woke standards?
Though it is uncertain the coming affirmative action decision will address racial neutrality, the courts are indeed aware of the issue. After the Supreme Court passed on the T.J. case last year (in the context of an application for emergency relief) and remanded it to a lower court, a divided three-judge panel at the Fourth Circuit federal appeals court in May allowed T.J. to continue with its revised admissions policy. But in a dissent that seemed to be addressed to a Supreme Court of some future date, Trump-appointee Judge Allison J. Rushing wrote the majority had refused “to look past [T.J.’s] policy’s neutral varnish” and consider instead “an undisputed racial motivation and an undeniable racial result,” and that the Constitution’s guarantee of equal protection “would be hollow if governments could intentionally achieve discriminatory ends under cover of neutral means.”
Just as the Supreme Court allowed discriminatory decisions by race as constitutional (“affirmative action”), the courts will soon face the question of whether so-called racially neutral criteria are constitutional. The issue is likely to come before the Supreme Court as early as this autumn, on the heels of the downfall of affirmative action.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Supreme Court to Hear Case on Affirmative Action in Academia
If you thought the Supreme Court threw up some dust overturning Roe v. Wade, wait until this autumn when they look at overturning Grutter v. Bollinger. The Supreme Court will decide whether race-conscious admissions programs at Harvard and the University of North Carolina are lawful.
The two cases which might overturn Grutter, Students for Fair Admissions Inc. v. President & Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina have been consolidated into one entity which asks three questions: can race be a factor for admission, has Harvard violated Title VI of the Civil Rights Act by penalizing Asian American applicants by engaging in racial balancing, overemphasizing race and rejecting workable race-neutral alternatives, and whether a university can reject a race-neutral alternative because it would change the composition of the student body, without proving that the alternative would cause a dramatic sacrifice in academic quality or the educational benefits of overall student-body diversity.
In short, can race continue to be an admission factor?
Grutter upholds affirmative action in academic admissions, saying race can indeed be a factor in deciding who to admit alongside things like tests and previous grades. In 2003, after being denied admission to University of Michigan Law School, white student Barbara Grutter sued, alleging the school discriminated against her on the basis of race in violation of the Fourteenth Amendment’s right to equal protection, as well as Title VI of the Civil Rights Act of 1964. She claimed despite her high test scores she was rejected because the Law School uses race as a “predominant” factor, giving applicants belonging to certain minority groups a significantly greater chance of admission than students with similar credentials from disfavored racial groups like whites and Asians.
Precedent was not on her side. The earlier case of Bakke was seen as binding precedent establishing diversity as a “compelling state interest,” and that the Law School’s use of race was narrowly tailored because race was merely a “potential ‘plus’ factor.” In short, race as a type of bonus for an application was allowed, though race as the predominant criteria for admission was not. The Court found the Law School’s “narrowly tailored use of race” in admissions decisions furthered a compelling interest in the educational benefits that flow from a diverse student body and is not prohibited by the Equal Protection Clause. What some came to call “reverse discrimination” was allowed within certain boundaries because its goal of a more diverse student body and broader access to higher education was a compelling state interest.
The idea behind Grutter (a kind of mission statement for America these days) is disparities between groups in things like admissions are always the result of discrimination, the U.S. is irredeemably racist, racism is everywhere, invisible power structures of structural oppression are equally ubiquitous and need to be dismantled, meritocracy is a myth, color-blindness is misleading concept, and a focus on individual rights (such as Barbara Grutter’s) distracts from the more important struggle against systemic racism.
The problems are many, even if you accept most of America’s Racial Mission Statement. Primarily, space at all academic institutions, and especially at the top tier ones, is limited and to disproportionally allow in one group usually means excluding another. That is why Students for Fair Admissions Inc. v. President & Fellows of Harvard College has amici groups which believe Harvard is violating the Civil Rights Act by penalizing Asian American applicants in favor of blacks. These include Chinese American Citizens Alliance, the Jewish Coalition for Religious Liberty, The Asian American Coalition For Education, and The Asian American Legal Foundation. Also included is the Coalition for TJ, a group representing Northern Virginia’s super magnet-school Thomas Jefferson High, which just won a suit recently declaring the school’s race-based admissions policy illegal.
The tide may be turning even ahead of the Supreme Court. In addition to the win for a return to merit-based admissions at Thomas Jefferson High, the San Francisco School Board recently returned the admissions policy at Lowell, the city’s most prestigious public high school, to the merit-based system that it had used for more than a century. New York City’s most sought-after high schools, including Stuyvesant, held on to their merit-based system even as the mass of high schools otherwise switched to a lottery.
If Grutter is overturned and loses hold of stare decisis, that would end 45 years of precedent saying race could be used as one factor among many in evaluating applicants. The universities argue race-based decisions are lawful, and serve an important national interest.
College admission has a long, sordid history chock-a-block with discrimination. Kenneth Marcus, assistant secretary for civil rights at the Education Department in the Trump administration, said Harvard’s treatment of Asian students was reminiscent of its efforts to limit Jewish enrollment. “Just as Harvard in the 1930s thought that Jewish students lacked the character to make them good Harvard men,” he said, “so today they often view Asian students as lacking the appropriate character.” One defender for affirmative action in admissions almost seems to confirm his opposition’s point, saying “Race-conscious admissions policies are a critical tool that ensures students of color are not overlooked in a process that does not typically value their determination, accomplishments and immense talents.”
Like Roe, Grutter, and earlier, Bakke, represent efforts by the Supreme Court to remake society through judicial opinion. With Grutter, the Court took it upon itself to again endorse the use of race as an admissions criteria by claiming the nation had a compelling interest in racially diverse higher education even at the risk of failing to provide access equally to groups like Asians and Jews. The irony of displacing one group to favor another is not lost, that the solution to discrimination is more discrimination, that all blacks are helpless and foreclosed; such is the thinking of racists, that one skin color carries with it some merit that is worth rewarding even at the expense of other colors.
Apart from the socio-political impact, the issue is not a small one. According to documents filed with the Supreme Court, a significant reversal of current racial-forward standard could shrink the percentage of black students admitted to Harvard by more than two-thirds. Some 7.58 percent of blacks who applied to Harvard were admitted. For whites only 4.89 percent of applicants were admitted. Asians trailed Hispanics 5.13 to 6.16 percent. Despite the higher enrollment percentages, SAT scores for blacks were significantly lower than whites. Harvard’s policies roughly quadrupled the likelihood an African American applicant would be accepted relative to a white student with similar academic qualifications, while multiplying the likelihood of admissions 2.4 times for Hispanics. Most African Americans fell into the bottom 20 percent of all applicants to both Harvard and UNC, but they were admitted at the highest rate for almost every performance decile.
In the upcoming decision the Court has a chance to realign itself and college admissions with American thought; a 2019 survey found 73 percent of Americans said colleges and universities should not consider race or ethnicity when making decisions about student admissions. Justice Kentaji Brown Jackson will not recuse herself from these cases, despite having been involved with them in the lower courts. She will join liberals Kagan and Sotomayor largely unsupported by both the public and their Court colleagues in standing up for continued affirmative admissions. The next class at Harvard and other sought-after schools may look very different from the one which starts this fall ahead of the Supreme Court’s decision.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
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