On March 7, 2015, the fiftieth anniversary of “Bloody Sunday,” President Barack Obama stood at the Edmund Pettis Bridge in Selma, Alabama, and said:
Fifty years from “Bloody Sunday” our march is not yet finished. But we are getting closer.
On June 23, 2003, Associate Justice Sandra O’Connor wrote, in the majority opinion in Grutter v Bollinger:
It has been 25 years since Justice Powell first approved the use of race to further an interest in student body diversity in the context of public higher education. Since that time, the number of minority applicants with high grades and test scores has indeed increased. We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.
That was 12½ years ago; the 25 years Justice O’Connor specified is half up. For the majority of that 12½ years, the United States has had an African-American President, a man who won two elections; it would seem as though the voting rights sought by the marchers in Selma had not only been secured, but have had a powerful impact.1 The obvious question has to be: have the problems of black Americans been addressed, mostly under a (half) black President, successfully enough in the last 12½ years, for us to have any confidence that the 25 year time frame the Supreme Court said should be sufficient will actually have solved the problems? Or have blacks in America made so little — if any — progress in the last 12½ years as to make the Court’s willingness to set aside the plain words of the Constitution as to mean that we might as well actually obey the Constitution than be willing to set it aside to achieve some noble gain?
In spite of all of the action that the government has taken, from passing anti-discrimination laws which included making private businesses “public accommodations,” in spite of Affirmative Action programs which metastasized from the original intention of being programs in which schools and employers had an outreach program to notify members of minority communities that opportunities for applications existed to outright quota systems,2 the impact of such programs has been virtually zero.
Nor have the various programs have had any impact on the disparity between the income of blacks and whites. However, the chart also shows that another minority group, Asian-Americans, have higher incomes than do whites. As we have documented previously, Asian-Americans are actually being discriminated against in collegiate admissions, yet they are outperforming all other groups in economic success.
Can we do something really radical like tell the truth here? For whatever reasons exist, none of the many government programs and interventions have made any appreciable impact on the disparity between the races in either educational performance or economic results. Under Democratic and Republican Presidents alike, whether the Congress was controlled by Republicans or Democrats,3 it just didn’t matter: nothing changed in the economic relationships between blacks and whites, or really between any of the racial/ethnic groups measured.
This has to call into question the reasoning of the Supreme Court in Grutter: the Court clearly disliked approving a government program which was very blatantly against the equal protection clause of the Fourteenth Amendment, and giving the “compelling government interest” reason as its justification. But now, after all of these years, both before the Gratz and Grutter decisions and after, none of the programs justified as compelling government interests have actually worked. Violating the simple constitutional requirement that the government treat everyone equally, to achieve that noble end, has not worked!
So, why should we continue with this farce? It is ridiculous to hold that we need to sidestep the Constitution to get something needed done, when the programs to get that something done do not work.4 Why not, at this point, admit that these things have failed, and say, OK, we are going to do something really radical like follow the Constitution, because things won’t be any worse if we do obey it.
It’s time to end Affirmative Action, and it’s time to end all racially-based programs that the government has.5 Trying to apply discrimination to fight discrimination has always been a ludicrous concept, and it has now failed in practice as well as theory.
From the University of Texas:
From educators to politicians, business leaders to students, more than 65 groups have written to the U.S. Supreme Court backing UT Austin’s position in Fisher v. University of Texas at Austin.
December 9, 2015
In the wake of the university’s arguments before the U.S. Supreme Court on Dec. 9 in Fisher v. University of Texas at Austin, it is clear that the university has a broad base of support. From constitutional scholars and educators to politicians, business leaders and students, more than 65 groups have written to the U.S. Supreme Court backing UT Austin.
— UT Austin (@UTAustin) December 9, 2015
Latin for “friend of the court,” Amicus Curiae briefs are filed by groups not directly tied to the case but who are still interested in the outcome.
Here’s a look at some of the briefs filed on the side of UT Austin.
Industry Leaders Want Diverse Hiring Pool
Leading businesses and industry groups — including 45 Fortune 100 companies from 3M and eBay to Microsoft and Starbucks, as well as DuPont, IBM, Intel and groups like the New York Bar Association — all filed Amicus Curiae briefs to support UT Austin.
In the briefs, these groups say the diverse student bodies at higher education institutions like UT Austin provide the best possible hiring pool when recruiting applicants. Like the narrowly tailored, holistic admissions process used on the Forty Acres, a complete-picture approach is used by most industry leaders when hiring new employees.
Universities Aver Benefits of Diverse Student Body
Across the higher education landscape, other universities stepped up to offer support for UT Austin.
Officials from more than 65 higher education institutions — including all eight Ivy League universities and eight leading public research universities — in addition to groups like Teach for America and the Associations for American Law Schools and Medical Colleges are all supporting UT Austin’s policy.
Like UT Austin, these universities, groups, administrators, researchers and professors believe admissions policies can’t be reduced to formulas but instead should include consideration of how each individual might contribute to and benefit from the student body.
There is more at the link. That the University would want to continue its Affirmative Action program is easily understood: despite being in a conservative state, university leaders are almost uniformly liberal in their political orientation. The question that none of them will ask is whether Affirmative Action has actually worked.
Setting aside the obvious unconstitutionality of a government institution treating people differently based on race, Justice Sandra O’Connor and the majority in Grutter were basing their permission to continue a narrowly-tailored Affirmative Action plan on it being a compelling government interest, to achieve a specified good; if the specified good is not being achieved by the program, there is no justification whatsoever for continuing with a program which is in violation of the Constitution!6
Writing on a completely different subject, Jonathan Chait, the (mostly) liberal writer for New York Magazine, said:
(D)ata can change liberal economic thinking in a way it can’t change conservative economic thinking. Liberals would abandon, say, new environmental regulations if evidence persuaded them the program was not actually improving the environment, because bigger government is merely the means to an end.
Yet, while all of the data show that Affirmative Action simply has not worked, the left will never abandon it; contrary to the esteemed Mr Chait’s claim, the left never abandon liberal programs, because they are wholly unwilling to look at the actual results, and Justice O’Connor’s statement that the Grutter majority believed “that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved” 12½ years ago is being tested in the crucible of real life. Unless there a heck of a lot more progress in the second half of the then-majority’s quarter century than there has been in the first — and more than half of that time was under our first (half) black President — we will continue to see what we already know to be the case: racial discrimination in the future will be no more successful in promoting equality than racial discrimination in the past.
Perhaps, just perhaps, if we try something really radical like not discriminating on the basis of race, things will get better for the black community in America. After all, it doesn’t seem like non-discrimination can do a worse job than Affirmative Action has done.
Cross-posted on The First Street Journal.
1 – In both 2008 and 2012, the Republican nominee won a majority of the votes cast by whites; Mr Obama would not have won either election had blacks not been allowed to vote.
2 – In the companion case to Grutter v Bollinger, Gratz v Bollinger, the Supreme Court held that the University of Michigan could not maintain an automatic 20 point racial preference when it came to collegiate admissions. The University of Michigan is a state school; Gratz would (probably) not apply to a private college.
3 – From 1963 through 2015, Democrats have controlled both Houses of Congress for 32 years, Republicans have controlled both Houses for 11 years, and there was split party control for 9 years. During the same 52 years, Democrats controlled the White House for 24 years, and Republicans for 28. During that 52 year span, Democrats had complete party control for 14 years, while the GOP had such control for 5.
4 – A point which also applies to the left’s continual advocacy of gun control.
5 – I see no problem if private institutions wish to continue with Affirmative Action; they are not the government and not subject to the Fourteenth Amendment.
6 – I do not accept the idea that a particular good justifies or permits setting aside the Constitution or the law; I am making this point strictly for the purposes of debate.