It is an example of just how long logical inconsistencies can exist in practice before they are eventually reconciled with the law. In the case of the earlier post, virtually everyone knew and to some extent agreed that slavery was inconsistent with our stated American ideals. But it took the better part of a century to finally eradicate that peculiar institution which was such a mar on our philosophical aspirations.
We have something similar going on right now, our modern equivalent.
Ever since affirmative action was embodied in law, everyone has always known that this was inconsistent with our national values that everyone is born with equal rights, should all be governed by the law, and that everyone should be equal before the law.
You simply cannot judge people based on their skin color and not contravene those values of equal rights, rule of law and equality before the law. You can attempt to justify such racism by trying to show that the benefits outweigh the costs but you cannot insist that affirmative action (or quotas or diversity objectives) is consistent with those noble values. Racism is racism.
This day of reckoning has been coming for a long time and was heralded by Chief Justice Roberts in the Parents Involved in Community Schools v. Seattle School District No.1, the race-based school assignment case from way back in 2007.
The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.
Earlier this week, the Supreme Court heard arguments for and against using race as a basis for deciding who might be admitted to prestigious universities. In one case, to the flagship of the state university system in North Carolina and in the other to the private university, Harvard.
While three justices still seem committed to discriminating based on race, most court observers seem to think that discrimination based on race will be overturned by the majority six. The biggest question remaining will be how to enforce the decision. Universities, many state education departments and many NGOs are deeply committed to discriminating based on race for theological reasons. They believe that it is a moral position (despite the negative evidence.)
Making it clear that discriminating based on race is unconstitutional will be insufficient to actually end such discrimination. It is a good first step but not sufficient.
From Affirmative Action Is Going Down—And It’s A Good Thing Too by David Lat. The subheading is Sorry, Harvard, but 'visual diversity'—having a campus that looks like a Benetton ad—isn't a compelling state interest.
I oppose racial preferences in education, as do 74 percent of Americans, and I have held this view for more than 30 years. My overall political views, as well as my specific opinions on many different issues, have shifted dramatically over the past three decades. But my opposition to affirmative action has remained constant.[snip]We can argue—and the parties argued in district court—over how many applicants are affected by racial preferences. But if applicants have a constitutional or statutory right not to be subjected to racial discrimination, and Harvard and UNC knowingly violate those rights by using race-conscious admissions, the small number of victims is no defense. We don’t excuse violations of the Constitution or laws of the United States because “only a few people’s rights” were violated.The emphasis on “holistic” admissions serves to hide the ball. It intentionally obscures the fact that some applicants are helped, and some applicants are hurt, purely because of their race. But interestingly enough, it also wound up harming the pro-preferences side in yesterday’s arguments. The defenders of racial preferences got hoisted by their own “holistic” petard.Because the modern, “holistic” admissions process is so comprehensive, probing, and judicious, applicants who have overcome discrimination—which both sides agree is a legitimate consideration, since it reflects qualities like resilience, character, and grit—have multiple avenues for sharing this with the admissions committee. They can write essays. They can have teachers or guidance counselors discuss it in recommendations. They can mention it themselves in interviews. A ruling for SFFA would not—and should not—prevent this, as SFFA’s lawyers confirmed in response to questions from the Chief Justice John Roberts and Justice Amy Coney Barrett.So what would a ruling for SFFA do? It would block universities from considering race qua race, i.e., race divorced from any other factors. It would bar Harvard and UNC from asking applicants to “check a box” for race and then assigning pluses or minuses to applicants based solely on the boxes checked. Both the Chief Justice and Justice Samuel Alito were very focused on the “check a box” issue (and I agree with Professor Josh Blackman that “one possible holding is that the universities are not allowed to consider the ‘check box’”).[snip]
Defenders of affirmative action argue that “checking the box” correlates strongly with, or serves as a proxy for, having had certain experiences—e.g., racial discrimination—and this was a key point made by the three liberal justices yesterday. But again, given today’s thorough, painstaking, “holistic” admissions process, why do you need a proxy when you can have the thing itself? Why do you need an applicant to check a box when they can instead convey their experience through essays or recommendations that talk about overcoming discrimination, in granular detail?Put another way, checking a URM box is no guarantee of true diversity. As Chief Justice Roberts repeatedly emphasized at oral argument, assuming that people who check a certain box have certain views or a certain type of life experience is nothing more than rank stereotyping—and often unwarranted, given the increasingly complex and diverse world in which we live.An applicant who checks the “Black” box might be a descendant of former slaves who lives in poverty in rural Mississippi, a child of a Nigerian oil baron who lives in incredible wealth on Banana Island, or our son Harlan, a child of two lawyers who lives in upper-middle-class comfort in northern New Jersey. Should all three of these applicants get a “plus” or “tip” in admissions—even vis-à-vis, say, a child of Chinese immigrants who lives in poverty in New York’s Chinatown, or a white kid who lives in poverty in rural Appalachia? I think not.[snip]Visual diversity. That sad, shallow, hollowed-out vision of “diversity” is exactly the kind of diversity that Harvard, UNC, and other educational institutions are obsessed with. That’s the kind of diversity these schools are seeking by giving pluses to applicants who “check the box.” Checking the “Black” box doesn’t guarantee a “Black” experience: the descendant of former slaves, the child of the Nigerian tycoon, and our son Harlan have had very different life experiences, and as a result, they probably hold very different worldviews too. But here’s the one thing that all three of them can reliably deliver, thanks to their darker skin: visual diversity.So in the end, what Harvard and UNC are arguing is that visual diversity is a compelling state interest. Having classrooms and admissions brochures that look like Benetton ads can justify resorting to racial classifications that we have justifiably banned in pretty much every other area of American life. The idea would be laughable if it weren’t so wrong.
Morally, politically, and legally race-based discrimination is wrong. The mystery is why so many academics, educationists, and progressive activists are so committed to racial discrimination. Especially in recent years when the empirical evidence has become so overwhelming on the ineffectiveness and detrimental impact of diversity initiatives on the purported beneficiaries.
When you have an evil belief which is so transparent and so destructive, the only explanation can be that it is a faith-based belief.
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