Christians Should (Mostly) Rejoice Supreme Court’s Affirmative Action Ruling
By Ben Johnson/The Washington StandJuly 01, 2023
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"Diverse weights and diverse measures, they are both alike, an abomination to the Lord," says the Bible (Proverbs 20:10). The Supreme Court complicated, though it did not entirely eliminate, one such abomination on Thursday morning by striking down the use of overtly race-conscious affirmative action criteria in college admissions.
Racial Discrimination Is Unconstitutional, Regardless of Its Victim: Court
"Many universities ... have concluded, wrongly, that the touchstone of an individual's identity is not challenges bested, skills built, or lessons learned but the color of their skin. Our constitutional history does not tolerate that choice," says a 6-3 ruling in the case, which consolidated lawsuits against Harvard and the University of North Carolina. A coalition of students whose scores should have merited admissions to upper-crust schools challenged race-conscious admissions processes under both the Equal Protection Clause of the 14th Amendment and Title VI of the Civil Rights Act of 1964. The justices ruled the racially discriminatory process violates the Constitution.
In the majority opinion, Chief Justice John Roberts reviewed the court's history on the issue, from the tangled plurality opinion in the 1978 Bakke case that opened the door to considering race in admissions, to the 2003 Grutter v. Bollinger opinion, which foresaw Thursday's decision. "We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today," justices wrote in 2003. Roberts commented, "Twenty years later, no end is in sight." Bona fide efforts to right historical wrongs "may never use race as a stereotype or negative, and -- at some point -- they must end."
"Eliminating racial discrimination means eliminating all of it," wrote Roberts. "Distinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality," he added, quoting a 1943 Supreme Court decision.
The best legal reasoning and writing, as always, belonged to Justice Clarence Thomas. "Racialism simply cannot be undone by different or more racialism," he wrote. "Even in the segregated South where I grew up, individuals were not the sum of their skin color. Then as now, not all disparities are based on race; not all people are racist; and not all differences between individuals are ascribable to race."
The view of Justice Ketanji Brown Jackson and others of African Americans as "a seemingly perpetual inferior caste" is "cancerous" and consigns blacks to "permanent victimhood" status. "Individuals are the sum of their unique experiences, challenges, and accomplishments. What matters is not the barriers they face, but how they choose to confront them. And their race is not to blame for everything -- good or bad -- that happens in their lives. A contrary, myopic world view based on individuals' skin color to the total exclusion of their personal choices is nothing short of racial determinism."
"That is the same naked racism upon which segregation itself was built," Justice Thomas added. Affirmative action is "plainly -- and boldly -- unconstitutional."
The worst reasoning, and writing, belonged to two of the three liberal justices who wrote their own dissents. Justice Sonia Sotomayor -- who has called herself an "affirmative action baby" and admitted "it would have been highly questionable if I would have been accepted" into Princeton University and Yale Law School, because "my test scores were not comparable to that of my classmates" -- said the ruling "cements a superficial rule of colorblindness as a constitutional principle in an endemically segregated society." The decision undid "momentous progress" that gives society "critical benefits," presumably such as her SCOTUS appointment.
In a separate dissent, Biden's nominee Justice Ketanji Brown Jackson -- who recused herself from the Harvard case, since she sat on an advisory governing board (making that a 6-2 decision) but voted in the UNC case -- wrote what appeared to be a college op-ed. "With let-them-eat-cake obliviousness, today, the majority pulls the ripcord and announces 'colorblindness for all' by legal fiat," she ranted.
Yet the admissions process was anything but colorblind for the victims of Ivy League affirmative action, such as high-achieving Asian Americans, who were essentially stereotyped as personally odious in order to limit their numbers and achieve more racial balance. To substitute "diversity" for competence, college administrators ranked Asians low on personality traits such as "courage," "relational kills," "leadership," and "personal attractiveness." Roberts noted, "In the Harvard admissions process," which admits only 3.41% of all applicants, "'race is a determinative tip for' a significant percentage 'of all admitted African American and Hispanic applicants.'"
Similarly, Obama appointees, such as current California legislator Buffy Wicks, weaponized affirmative action to harm underprivileged white women. Harvard does not offer statistics for the percentage of white students, but by process of elimination, white, non-Hispanic students make up 40.6% of Harvard's student body -- and 43% of white students at Harvard are legacy admissions, athletes, or in other well-connected categories. High-achieving students from a lower-income bracket -- precisely the people colleges claim to want and should reward -- are locked out by such discrimination, essentially by design.
The decision came closer to realizing a longstanding goal of constitutionalists and those who seek to end discriminatory policies and drain the poison of racial animosity from our system. Republican politicians also greeted the ruling favorably.
"This is a great day for America," said President Donald Trump on his social media platform, Truth Social. "Our greatest minds must be cherished and that's what this wonderful day has brought. We're going back to all merit-based -- and that's the way it should be!" As in Dobbs, Trump appointed three of the six justices in the majority. Former Vice President Mike Pence also took a share of the credit, saying he is "honored to have played a role in appointing three of the justices."
The ruling overturns "a lie from the pit of Hell," that "somehow the color of your skin means that you will not be able to achieve your goals from an educational perspective," said Senator Tim Scott (R-S.C.). "Affirmative action is systemic discrimination," said Senator Tom Cotton (R-Ark.). "Admissions should be decided on merit -- not by color of skin."
Liberals Lament -- and Plan Next Steps
Joe Biden, with the words of nullification dripping from his lips, vowed to circumvent the decision. "We cannot let this decision be the last word," he said, essentially overruling the justices. "Today, for too many schools, the only people who benefit from the system are the wealthy and the well-connected," said the president whose son, Hunter Biden, went to Yale Law School.
His administration spent weeks preparing a list of possible executive actions, along with left-wing legal organizations, including issuing a list of quasi-racial diversity policy schemes he deems legal and compliant with the decision within the next 45 days.
Both Barack and Michelle Obama also spoke out, with the former president also took the opportunity to throw shade at Senator Scott and Nikki Haley, an Indian-American who also supported the ruling. On a podcast with David Axelrod, the ex-president bashed "African American or other minority candidates within the Republican Party who will validate America" -- as if there were something wrong with "validating America." (Obama held out the possibility that Scott "may even be sincere." How gracious.)
Two Cheers for Roberts
To the extent Biden succeeds, he can thank Roberts, whose decision contained the seeds of its own irrelevance. Critically, it gave universities a key to unlock 1,000 evasions by adding they can still include race-based considerations, provided they are not race-conscious.
"Nothing in this opinion should be construed as prohibiting universities from considering an applicant's discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise. But, despite the dissent's assertion to the contrary, universities may not simply establish through application essays or other means the regime we hold unlawful today," he wrote.
Legal experts warn that's precisely what colleges plan to do. College administrators will now engage in "proxy discrimination," where racial favoritism becomes less open and "more insidious." Administrators will "find proxies and alternative ways of getting at race. They will ask their students to describe how they have overcome adversity. They will discriminate on behalf of students from particular zip codes. They will find other plans, whether they have to do with class rank or socioeconomic considerations, they will come up with whatever they need to try to achieve the racial balance that they want to," Kenneth Marcus, a former member of the U.S. Commission on Civil Rights, told Fox News Thursday. "This is something that has to be watched very closely."
The plaintiffs and the Biden administration have all but announced they plan to subvert the ruling. Harvard quoted Roberts' line that colleges may consider "an applicant's discussion of how race affected his or her life," including through "discrimination" before adding, "We will certainly comply with the Court's decision."
UNC-Chapel Hill Chancellor Kevin Guskiewicz announced his university has been "preparing for any outcome" and is "determining specifically how we will comply with this decision" so administrators can "live out our values." William A. Jacobson, the founder of Legal Insurrection, noted, "The Supreme Court gave universities a narrow opening, and Harvard just announced it's going to drive an affirmative action truck right through it."
Conservatives Plan to Uproot Corporate DEI Policies
Thursday's ruling may have a beneficial effect if it leads conservatives to sue corporations and return to merit-based policies in the private sector, as well. Some are itching for the fight. "Now is the time to wage lawfare against the DEI colossus," wrote former Trump aide Stephen Miller of America First Legal. He added, due to likely massive resistance, the "House must defund any university that doesn't adopt colorblind admissions."
There is evidence some corporations are already rethinking their "diversity, equity, and inclusion" (DEI) policies, adopted under the pincher movement of riots from below and ESG from above. May their tribe increase.
But to truly heal, society must do more. It must contradict and shut down patently erroneous claims that America is more racist than at any time in its history and acknowledge their source: an ideologically extremist movement exploiting a previously praiseworthy movement.
Instead of healing, the movement became a racket, its rhetoric devolving from the cadences of Martin Luther King Jr. to the bullhorn bromides of Al Sharpton, its ideology shifting from equality of opportunity to equality of outcome, and its radicalized agenda entrenching itself in federal bureaucracy.
To justify their shakedowns of the private and public sector, figures from Jesse Jackson onward snowballed claims of racism from -- well, actual racism -- to include everything from smiling, objective thinking, and patriotism, to newly invented microaggressions of all varieties.
Overturning affirmative action as we knew it should destroy all claims for reparations. "Affirmative action was reparations," John McWhorter, a Columbia University English professor, told then-CNN host Don Lemon in 2021. "The Community Reinvestment Act of 1977 that forced banks to invest in inner cities" and the fact that "welfare was reformed to be easier to get" were "part of a program of reparations, which is part of a national mood in the '60s and '70s."
The U.S. government has spent more than $23 trillion on the War on Poverty since 1965, although the official poverty rate among black citizens -- which fell by half between 1950 and 1965 -- has remained essentially unmoved since LBJ's Great Society. The days of LBJ and CRT should now end, as desired by the vast majority of Americans across the political spectrum.
Biblical Justice or Socialist 'Justice'?
In rebuilding a just society, we must also replace the regnant doctrine of government and academia with biblical standards of justice. This requires overturning a sclerotic, reductionist view of the human person with an expansive anthropology based on the quality of his or her moral character.
Like all idolatry, America's new religion of "equity" -- which the Biden administration has put "at the center" of a "whole-of-government" plan to redistribute wealth and respect -- justifies blatantly immoral actions. "Racial discrimination is not inherently racist," wrote Ibram X. Kendi in "How to be an Antiracist," the faux Bible of America's silly season on race in 2020. "The only remedy to racist discrimination is antiracist discrimination. The only remedy to past discrimination is present discrimination. The only remedy to present discrimination is future discrimination."
As I described in The Daily Wire, the most influential doctrine in America today, critical race theory (CRT), holds that the problem with historical U.S. policies that discriminated against minorities is whom they discriminated against. A Christian worldview understands the problem with unjust laws is discrimination itself.
Unjust laws cannot create a just society. And discrimination is manifestly unjust, according to a biblical perspective.
The Bible sees all people as equal before God and the law. "Of a truth I perceive that God is no respecter of persons: But in every nation he that feareth him, and worketh righteousness, is accepted with him," said the Apostle Peter when he had his own racial reckoning (Acts 10:34). In the eyes of God, "There is neither Jew nor Greek, there is neither bond nor free, there is neither male nor female: for ye are all one in Christ Jesus" (Galatians 3:28; see also Colossians 3:10-11).
God judges us in Heaven based on our faith and instructs earthly rulers to judge us based on our moral choices. As a result, He demands all people stand on level ground at the foot of the Cross and when they approach the bench. Therefore, He decrees one law for all people, irrespective of their ethnicity (Exodus 12:49; Leviticus 19:15; Leviticus 24:22; Numbers 15:16 and 29; and Proverbs 24:23). Uneven weights and measures are an "abomination to the Lord" -- the worst abomination is having uneven scales of justice based on race (Proverbs 20:10).
Divine wisdom foresaw that characterizing people based on race divides humanity into a squabbling collection of hermetically sealed, adversarial groups. That's the road to Lebanon. Today's decision marks the first step back to sanity -- and a step toward reinstating the biblical vision where all people can live up to their full, God-given potential and the scales of justice balance equally on merit and moral character.