Wednesday, April 23, 2014

Affirmative Action Dead(er)

I told you last year (LINK) that affirmative action is dead. And so it remains. Well, not technically, but practically. Yesterday, the Supreme Court gave permission to remove the corpse. Let’s discuss.

In June of last year, I told you about the Fischer v. University of Texas case. That case involved a white student who sought admission to UT but ran into their admissions policies which favored minority students. She sued claiming discrimination in violation of the 14th Amendment’s Equal Protection clause.

She lost at the lower levels with the Fifth Circuit Court of Appeals pointing to the Supreme Court’s decision in Grutter v. Bollinger which allows colleges to use race “as one of many plus factors” in admissions decisions. According to Grutter, colleges cannot set aside places by race, but they can grant minorities extra points for their race provided that race is one of many different “plus” factors that can be awarded AND provided that race is not the predominant deciding factor.

That’s stupid, however. This “you can consider it, but you can’t base your decision on it” works out logically to X is true, but just not THAT true, and logically speaking, that’s nonsense. Morally speaking, this is nonsense as well. Either the use of race is acceptable or it is not. If it is acceptable then there is no reason to disallow its use. If it’s not acceptable, then it should not be allowed at all. And this attempt to allow its use, but not in any meaningful way, straddles the morality in such a way as to offend both sides.

Anyway, the Supreme Court was expected to use the Texas case to strike down affirmative action or to give it new life. They didn’t quite do either, however, and the result was that everyone in the media described the Supreme Court as “punting” on the issue of affirmative action.

Only, they hadn’t punted at all.

As I explained, the simps had misinterpreted the decision. What the Supremes held was that Texas, i.e. the state, bears the burden of proving both a “compelling state interest” in ensuring diversity at their schools AND that their method for achieving that goal of diversity is “narrowly tailored.” This is the standard “strict scrutiny” test for laws that violate fundamental rights like equal protection, and it’s hard to win.

In the Texas case, the action occurred in the second part of the test: the narrow tailoring. The Supreme Court held that Texas needed to show that under its plan to increase diversity, each applicant was still evaluated as an individual and not in a way that made an applicant’s race into the defining feature of their application. To do this, the Court held that Texas needed to prove that is it “necessary” for Texas to use race to achieve the educational benefits of diversity. “Necessary” in this case means this: “The reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the education benefits of diversity.”

Bang! In other words, the school must show that it could not have generated diversity in any other way.

This was a death sentence for college affirmative action because there is no way to ever prove that race-based admissions are necessary. In fact, fearing the loss of affirmation action, schools everywhere found other ways to ensure diversity and thereby proved that race itself need never be a factor. That meant the Supreme Court ruling allowed affirmative action but only if you can pass an impossible test to demonstrate your need for it. Some punt.

Well, now the Supreme Court has “punted” again on affirmative action. This time, the issue involves a voter-backed initiative in Michigan which changed the Michigan constitution to prevent the state from using race as a factor in college admissions. Conservatives hoped the Supremes would strike down affirmative action. Liberals hoped the Supremes would call it a constitutional right and strike down any attempt by the public to end it. The Supremes did neither.

In a 6-2 ruling, the Supremes refused to strike down affirmative action in principle, but they held that nothing in the Constitution disallowed the voters in a state choosing to ban it in their state. So nothing changes?

Not quite.

The key to get out of this case is that affirmative action is not a right. If the Court believed that you had a right to affirmative action, then it would have followed its own lead in the gay cases where the Court struck down preemptive attempts to ban gay rights legislation. The Court didn’t apply those, however, and that means affirmative action isn’t a right protected by the constitution. Basically, affirmative action is just another goodie that you can vote on.

So what does that mean? It means that the states are now free to wipe it out without federal courts having the ability to question the state for doing so. The Congress can do this too. In effect, the Supreme Court has said, “Yes, we allow Affirmative Action, but we don't require it, so go ahead and wipe it off the map if you like.” And, adding the prior case, “if you do intend to keep it, then be prepared to prove that race preference was the only possible way to achieve your goal.” That's a death sentence.

So why not just wipe it out? Because this is a savvy way for the Court to kill something without putting their fingerprints on the murder weapon. If you ask them, they will swear that Affirmative Action is still the law of the land... you just won’t find it anywhere within a few years.

Add this to the Supremes ripping the heart out of the Voting Rights Act and I see a Court that is determined to get Uncle Sam back out of the racial spoils game. Interesting times.


tryanmax said...

The Roberts court is quite possibly the most clever in American history. Several times now they have handed down decisions that will have lasting, important consequences, yet each time they've done so in a way that leaves virtually no mark. I wonder how many decades before mainstream political historians catch their little trick? (I also wonder whether the Obama appointees are aware of what's happening?)

AndrewPrice said...

tryanmax, That is a very insightful observation and I agree. In several instances now, they've fundamentally shifted the law and in almost each instance, left, right, the MSM and the political class walked away grumbling that nothing had happened because there was no grand pronouncement.

This is how really smart judges change the world though, and these guys keep doing it over and over. I think that in 50 years, the Roberts Court will be seen as the most transformative in history.

AndrewPrice said...

P.S. I think Obama is aware, but knows he can't do anything about it, so he's not mentioning it because it will only add to the sense that he's a total failure for the left.

tryanmax said...

I was more wondering about Sotomayor and Kagen. I'm sure they're plenty smart, being SC Justices and all, but neither strikes me as particularly clever, if you understand what I mean.

AndrewPrice said...

Well, Sotomayer understands that her side is losing. She's opposed each of these decisions and on this one she issued a scathing (whiny) dissent basically suggesting between the lines that the Supreme Court is endorsing racism. Her main defense, however, seems to be "this isn't fair" and it's not fair because colleges can discriminate in favor of athletes and children of alumni. That's known as totally missing the point.

So I would say that she does not really understand what is happening in these decisions. It sound to me like her anger is more based on the fact that the pro-affirmative action side lost rather than an understanding of how badly they lost.

I'm not sure about Kagan. I don't hear much from her.

AndrewPrice said...

BTW, Don't assume that they are "plenty smart" just for being judges or SC judges. I've met a good number of judges who are dumber than a bag of rocks. They just happened to be well connected. And in terms of Sotomayer, I've never seen any evidence of brains of any sort. Kagan I would say is smart, but not Sotomayer.

Tennessee Jed said...

I had been over at the other site, so I just checked in before padding off to bed. Great analysis. I really would like to read Sotomayor's opinion. I have been reminded in recent years that SCOTUS is made up of humans with their political beliefs and bias. They are exceptionally good at spinning their decisions to reach a desired outcome. I have always believed it is the job of the court to determine whether a particular law causes or results in a violation of the constitution. I also thought there are certain practices they follow. For example, in Obamacare, I would have thought they would have said "if you want to make this constitutional, make it a tax."

Point is, if the court happens to switch back to activist liberal majority, affirmative action can come back, even if it is bad law to do so.

AndrewPrice said...

Jed, That's true and that's why it is vital to get more Republican presidents. We need a 7-2 court to be safe long term. Otherwise, there is always the danger of being one vote away from a lot of this reversing itself.

On the other hand, the left has learned that they can't really get what they want through the courts as easily as they once thought they could because court-created law tends to blow up with the public and create points of resistance.

But yes, we need more conservative judges.

Anthony said...

I think politically the Supreme Court wiping out the VRA will be more consequential than then putting another stake through the heart of affirmative action.

In the short term the death of the VRA will probably boost black turnout for an election cycle or two (it was heavily discussed in the voting line I was standing in back in 2012) but in the long term it will decrease the black vote.

The ID requirement is what gets the most coverage but I suspect sharply chopping the number of voting days (and the hours of the voting days that remain) will have a much bigger impact.

tryanmax said...

Andrew, Well, social climbing is a sort of smarts, but now I'm just reaching to cover my butt. LOL

Jed, I tend to side with your belief about the job of the court, but unfortunately, that is the grand debate, whether that view is correct vs the living, breathing/activist view. Roberts has found a third way: assume constitutionality, but provide an interpretation to ensure it. This is not too different from the way religious apologists explain apparent contradictions in sacred texts or how sci-fi nerds (like me) will devise reconciliations for plot holes that form in ongoing canon. (If X is true, but -X is also true, then wormhole!) Essentially, he's sanding square pegs to fit round holes.

I appreciate his approach more and more for a number of reasons. First, it gives government a taste of its own medicine: "You may keep this right, but we will make it very hard to exercise." Second, it confounds both sides and frustrates cries of foul. So both sides grumble but neither can explain to the public why they're upset. This makes the decision appear above politics and less likely to be challenged. Finally, and most brilliantly it neuters liberal sacred cows rather than slaughtering them, putting Dems in the tough position of begging for things they already have. Dems are already bound up in appearances over substance, so they'll first have to wrap their head around what's taken place before they can effectively counter it. They'll paint themselves like Verruca Salt in the meantime.

BevfromNYC said...

Two things: The reason you have not heard from Kagan on this issue is that she recused herself. Hence the 6-2 vote.

2. There is noise that Ginsberg will be retiring soon. And since she will most likely retire during Obama's reign, it will be just trading one liberal for another.

Okay, there's a "3"
I have to agree with you about Sotomayor. She seems to forms her opinions/rulings through emotion rather than the through the law. I know that is probably sexist of me to say that, but then I am a woman and I can't be sexist, right?

Tennessee Jed said...

no, it is not sexist, Bev since both men and women are capable of acting emotionally. However, this woman was pretty up-front about it with her "wise latina) comments. I think she sees herself as some sort of "Solomon" who sits their and comes up with what she believes is a "just" result, and never mind what the constitution might say. As for the trde, you are absolutely correct. What we should be afraid of is Hillary getting to appoint judges for 4 more years which brings a guy like Scalia into play.

Tennessee Jed said...

Tryanmax - it is the grand debate ever since Republican Chief Justice Charles Evans Hughes switched his positions giving up constitutional responsibility out of fear of an attack on the court.

AndrewPrice said...

Anthony, I'm not sure the VRA will matter much. It might raise turnout slightly at first, but it's a dangerous game to tell people that they won't be able to vote if they turn out. Done right, it inspires defiance. Done wrong, it depresses interest. Done too often, it gets ignored.

In the bigger picture, I don't think much will change in terms of voting. The voter ID stuff won't change anything. It might stop 100 people from committing voter fraud, but that's about it. The bigger effect would be if the Supremes broke up these majority minority districts... except, blacks and Republicans both want those and the Democrats would be hard pressed to do anything that would reduce the number of safe black districts.

Personally, I think the end of affirmative action will do more because it ends the excuse factor that stupid whites use to dismiss black success... "Oh, he only got there because of affirmative action."

tryanmax said...

Jed, true, but I have to give Hughes credit for preventing Roosevelt from converting SCOTUS into a presidential puppet theater. I'm convinced FDR had a massive inferiority complex that was unassuageable.

AndrewPrice said...

tryanmax, Agreed about Roberts. What he's done is very bright. In fact, what's interesting is that most of our most important decisions were done using this very model. To give you the prime example: Marbury v. Madison.

Believe it or not, the constitution doesn't actually assign the Supreme Court the role of determining constitutionality. That was something the court grabbed for itself in Marbury. What happened was that the Executive got sued. It responded by saying that the Court had no right to review the Executive. The Court said it did, but then it totally endorsed the Executive's action. The result was that no one complained and it became part of our law that the Supreme Court would be the arbiter of constitutionality. Very clever.

Roberts flies under the radar in similar ways. His decisions grant people what they want while undermining the rights they were seeking, And the result is that both sides feel sort of happy and sort of upset, and neither can really complain without sounding like idiots to the public because they got the headline answer they wanted.

It's a great way to make the court sound apolitical and like they aren't doing much, even as they are doing a lot.

AndrewPrice said...

BTW, smart trial judges know how to do this extremely well. In particular, they excel at giving you everything you ask for without ever giving you anything you really want -- especially when they know you're going to lose, you suddenly start getting all kinds of favors, none of which mean anything, but each of which makes it impossible to appeal on the basis of bias or prejudice.

tryanmax said...

In other words, good trial judges are like genies.

AndrewPrice said...

Bev, True on Kagan, but even beyond this case, I rarely hear anything from her. I know she votes left, I know she's thoughtful, and I know she's extremely bright, but I never hear her speak and her ruling doesn't get much play.

As an aside, even without Kagan, this should have been a 5-3 ruling. The fact Roberts got a 6 is kind of stunning to me.

On Ginsberg, there have been discussion of her retiring for years now -- probably because she looks like she already died. Plus, if I recall correctly, she had a cancer issue. But every time, she comes out swinging and says she won't retire. Some of them hang on until they are basically brain dead, but most don't. I suspect she will leave after the election... which could be a mistake if the Republicans win the Senate.

The manual says that yes, you can be sexist! Congrats! :D

Agreed about Sotomayor. I've just never seen anything from her that suggests that she's learned all the ins and outs of being a great judge. The best judges are perfectly capable of spinning anything to fit their own prejudices and making it sound like it was obvious under the law. She can't do that. She just tells you what she thinks is fair and doesn't often bother with the law. The result is not very impressive.

AndrewPrice said...

tryanmax, Good trial judges understand two things (1) what will matter to the outcome of the trial, and (2) what can be appealed (not only what is appealable, but at what point does it become an issue and how they can get around it). Understanding those two things, they have total control over their courts. They can mess with you all they want without any chance of you being able to appeal their conduct or their rulings. They can swing a jury without leaving a trace they have done it. And they can make you pull your hair out jumping through hoops.

Even worse, the law tends to contradict itself regularly. A great trial judge will know this and can find alternate routes to reach any conclusion they want.

AndrewPrice said...

Jed, That's how she's struck me as well -- Solomon. She sees her role as judge as being the dispensing of wisdom rather than application of law. The end result of that tends to be inconsistency and simplistic opinions that raise more questions than they answer.

BevfromNYC said...

I think the end of affirmative action will do more because it ends the excuse factor that stupid whites use to dismiss black success... "Oh, he only got there because of affirmative action."

Yes, Andrew, but it could double down on is "I didn't get in/hired/picked because of systemic racism everywhere."

And I am sorry, but I do NOT see what all the caterwauling is about having to show an ID to freakin' vote! I can't walk into any government building without an ID including the White House. To work with any government agency that provides services to the general public including but not limited to the VA, Social Security and Medicare, all are required to have some form of government issued ID. So to say that the elderly or others on public assistance will be disenfranchised is just B.S.

AndrewPrice said...

Bev, It might, but I suspect that the people who say that would have found racism an excuse in any event.

On IDs, and think about how much information you provide to get a loan or get cable or anything else in the commercial world. There is no legitimate reason that you shouldn't have to show an ID to vote.

Tennessee Jed said...

Bev - old parable - Give a man a fish and he will have dinner. Give a man fishing lessons and he will have food for life. Give a man welfare, food stamps, cell phones, and a lifetime of unemployment compensation and he will vote Democratic for life and 30 years after he dies.

Anthony said...
This comment has been removed by the author.
Anthony said...


If someone is unemployed presumably taking a day to vote isn't an issue :). The chopping down of voting time isn't aimed at the unemployed, its aimed at the working poor.

Employers at the low end of the scale don't offer their employees (particularly not their part timers) paid leave.

That's why as I noted, I think stuff like cutting out weekend voting and lowering the number of 'after 9 to 5' hours voting booths are open will have a bigger detrimental effect on voting than requiring IDs.

I suspect the ID thing is aimed more at (and a bigger inconvenience for) college students than blacks.

Tennessee Jed said...

Anthony - it is, of course, a bit of a joke about Democrat Party fraud in elections. I don't think it has so much to do with "getting out the vote" as it does preserving the ease of continuing to keep fraudulent votes. Some may be dead. Others may be people who would never bother to vote at all if not for a ward volunteer swinging buy and getting folks to "sign here" to receive a free pack of Pall Malls. In my early work career, my secretary who lived in the Fishtown section of Philly told me how her cat was a registered voter and dependent.

BevfromNYC said...

Anthony - I would have sympathy for the "narrowing of the voting hours" issue however our polls in NY are opened from 7am to 9pm and as long as you are in line by 9pm, you must be allowed to vote. In addition, there are no rules to who can vote absentee as well as walk in voting at any polling place even if you are not registered to vote and it is not your voting precinct! And STILL we only have 25% of the registered voters electing our Mayor et al.- 40% for Presidential year elections.

If people were standing in line for days for the opportunity to vote like I see in other countries, I would have sympathy. But I don't see that here in this country. Statistically only less than 50% of registered voters nationwide even bother to vote in a Presidential year election and much less during off-year elections. You cannot possibly make a case that 50% of the voting population has been disenfranchised because of shorter hours and employer.

Where are these vast swathes of people who are being disenfranchised because their employers will not give them the time off? Just like the left makes this argument about those who lost insurance because of Obamacare are liars, I want to see the people making the disenfranchisement accusation. IF nothing else, they need to report their employers because that is actually against the law! And I would LOVE to see an employer who fires someone because they took time to vote have to explain that to a judge! Really, that would be really entertaining to see the pretzel twisting that employer would have to make to not be jailed/fined/sued/etc.

Anthony said...


'Still better than in a third world country' is an unusual argument to make for anything Stateside, but if that is your metric, fair enough.

I don't know where your argument that people not bothering to vote equals disenfranchised comes from. Most Americans don't think who is in power impacts their daily lives one way or another. That's not in and of itself a bad thing.

Also, who said anything about employers not giving time off? Of course they give time off, but they don't offer paid leave at the (private) low end of the employment scale, so taking a day off from work to vote or anything else is reducing the next paycheck.

Anthony said...

Here's an interesting article about a nutty student who will apparently say anything to get into the University of Michigan. I strongly suspect it is the only school she applied to.

No idea on what her career goal is, but I am trying to imagine a career door that would be slammed shut by not attending Michigan U and drawing a blank.

I think most students are more realistic/pragmatic about colleges (applying to multiple schools and just working or something for a year if none of the choices pan out).

Brooke Kimbrough, a 17-year-old high school senior, always dreamed of attending the University of Michigan.

But when she received her rejection letter in the mail this spring, Kimbrough took an unusual step: she held a news conference and rally at the campus to protest the decision.

“I fervently believe in black equality,” Kimbrough explained in a statement. “I believe that our public university system should provide a pathway for opportunity for underrepresented minority communities. I am appealing my application to the University of Michigan not only for myself, but for other black and minority students who deserve the equal opportunity to go to the best public university in the nation.”

AndrewPrice said...

Anthony, she sounds like an idiot.

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