Glenn Reynolds of Instapundit fame has a new Substack column.
Affirmative Action's Demise and Higher Education
— Gumlegs (@Gumlegs) June 29, 2023
Fruits of a credibility collapse
by Glenn Harlan Reynoldshttps://t.co/u7xTnDu5lU
And in it, he picks up on something that we admit we missed earlier when doing a deep dive into the decision in Students for Fair Admissions, Inc. v. Harvard College—the big affirmative action case decided today: The way higher education has lost all credibility with the Supreme Court.
First, we will remind you that the test applied to any kind of racial discrimination is known as the strict scrutiny test. That requires the entity attempting to justify the discrimination at issue to prove it is narrowly tailored to further a compelling purpose. It is a very difficult standard to meet and, in the vast majority of cases, the discriminator fails.
Reynolds points out that, previously, the Supreme Court didn’t actually apply that test in full:
Media accounts I’ve seen have tended to suggest that the Supreme Court had found that ‘diversity’ is a compelling interest, sufficient to justify overriding the Constitution’s ban on racial discrimination. …
But the Supreme Court did not itself find that diversity was a compelling interest. Rather, it deferred to universities’ claims that diversity was a compelling interest. A court defers to someone else when it says that it may have a different opinion on the matter itself but it will allow the opinion of the person or entity in question to control because of their expertise.
In other words, the Supreme Court used to defer to schools on what counts as a compelling interest. Bluntly, in almost any other context that is unthinkable. But even in the last major Supreme Court decision on affirmative action, Grutter v. Bollinger (2003), the Supreme Court did exactly that:
Thus, for example, in Grutter v. Bollinger the Court said: ‘The Law School has a compelling interest in attaining a diverse student body. The Law School’s educational judgment that such diversity is essential to its educational mission is one to which we defer.’ (Italics mine). So diversity is a compelling interest only because the university says it is.
He goes on to quote today’s decision as saying that the decision today included the phrase ‘The universities’ main response to these criticisms is ‘trust us.’’ That used to be enough, but it no longer was. The Supreme Court was no longer willing to trust them.
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And why doesn’t the Supreme Court trust them anymore? Reynolds offers some explanation:
But who trusts higher education anymore? At the turn of the millennium, when Grutter was decided, American higher ed was at its zenith. Since then a series of scandals – just today a famous ‘ethicist’ at Harvard was charged with fraudulent ethics research – has undermined its reputation for probity (and the Hollywood admissions scandal of a few years back certainly undermined the perceived integrity of its admissions process), even as everything else about universities came to seem less serious. With 57 genders, coloring books and crying rooms for election results, endless crusades against ‘whiteness’ and ‘heterosexism,’ and the like, the notion of deferring to the educational seriousness and expertise of those in charge of the asylums of higher ed seemed much less appealing. Whom the gods would destroy, they first make ridiculous. But higher education has supplied the ridiculousness itself.
If anything, he is going easy on them. For instance, consider this story:
John Roberts Would Like You to Pretty Please Stop Heckling Supreme Court Justices. He whine about justices heckled and that the Supreme Court does not need to be accountable by other branches of government.https://t.co/1eW1s9Fqp4 pic.twitter.com/LiGK1jdo9c
— JV3MJD (@JV3MJD) May 25, 2023
What the Tweeter and the story underlying it misses is that Roberts wasn’t complaining about the heckling of a Supreme Court justice, but actually the hecking of a lower court judge. He was imagining how his mentor, Judge Friendly (we swear, that is an actual name of a judge) would respond to recent events, saying:
There’s much in the legal arena that [Judge Friendly] would find abhorrent: [a] judge heckled and shouted down at a law school, protesters outside the homes of justices, to the extent that marshall protection is needed 24/7.
Supreme Court justices are just not called judges, so it is plain that he was referring to someone who isn’t a Supreme Court justice. He is most likely discussing this incident involving 5th U.S. Circuit Judge Stuart Kyle Duncan where he was basically shouted down and could not give his presentation:
Stanford Law official who admonished judge during speech is on leave, dean says https://t.co/TjERHxbho9 pic.twitter.com/njSfJUeFPJ
— Reuters (@Reuters) March 22, 2023
And of course, this is not the only example of leftists on campus trying to shout down their opposition:
Conservative judge urges U.S. judiciary to not hire Yale protesters as clerks https://t.co/vTqTijFPkI pic.twitter.com/e4HYHYrjlG
— Reuters (@Reuters) March 17, 2022
And, of course, there is the ongoing scandal of Elizabeth Warren, widely believed to have benefitted from affirmative action based on false claims of Native American ancestry, an issue we mentioned earlier today. And academia has promoted transgender ideology that you can become whatever gender you want, just because you feel like a certain thing at a certain moment—thus becoming a member of a preferred group for affirmative action purposes. Or the time that the University of North Texas drove a professor out of her job because she correctly said that one could say the n-word under the First Amendment.
University of North Texas lawyer resigns after using N-word at free speech panel https://t.co/STXwuUCWJv
— Filtered News (@filterednews) November 11, 2019
And if you want to see how wrong the academic community has gone on this, one need only go back to the first decision that endorsed affirmative action in college admissions, University of California Regents v. Bakke, 438 U.S. 265 (1978). It’s a complicated decision to pick through, but the opinion that wins the day was that by Justice Powell who argued to allow for diversity to be allowed as a compelling purpose. But Powell was arguing that issues such as racial preferences were only allowed as a means to the end of achieving intellectual diversity. And in doing so, he quoted positively from Harvard’s explanation on the value of diversity:
In practice, this new definition of diversity has meant that race has been a factor in some admission decisions. When the Committee on Admissions reviews the large middle group of applicants who are `admissible' and deemed capable of doing good work in their courses, the race of an applicant may tip the balance in his favor just as geographic origin or a life spent on a farm may tip the balance in other candidates' cases. A farm boy from Idaho can bring something to Harvard College that a Bostonian cannot offer. Similarly, a black student can usually bring something that a white person cannot offer.
So, the idea is to intentionally get many people from many different backgrounds, resulting in many different points of view being expressed, which sounds fine in theory.
Except it’s all a bad joke. Diversity of viewpoint at many universities usually adds up to ‘we will tolerate every viewpoint from radical leftism to Stalinism. From ‘tax the rich into poverty’ to ‘shoot the rich and drag their corpses through the streets.’’ They want lots of people from different backgrounds, different demographics and so on, all agreeing on the same leftist agenda.
Or look at how hollow all of that is in the case of Elizabeth Warren. She denounced the decision today…
An extremist Supreme Court has once again reversed decades of settled law, rolled back the march toward racial justice, and narrowed educational opportunity for all. I won't stop fighting for young people with big dreams who deserve an equal chance to pursue their future.
— Elizabeth Warren (@SenWarren) June 29, 2023
…but she is a perfect example of how ridiculous the old regime was. Let’s pretend that her claim to native ancestry was genuine. Stop laughing, let’s play pretend. Has it made any difference in her life—except as a benefit? Was there any point in her life where someone discriminated against her for being Native American and she learned bitter lessons from that treatment? Or was she involved in Native American culture and could possibly bring that culture to Harvard Law school? As far as we know, the answer is ‘no’ on both counts. So, in what meaningful way did her being a Native America contribute to the intellectual diversity of the school? Seemingly, nothing.
But, hey, it allowed for Harvard to say they finally hired a woman of color and if you don’t think that mattered to the school, we have some rap albums from President Joe Biden and Senator John Fetterman to sell you.
Meanwhile, one only has to go on Twitter and search for the words ‘Uncle Tom’ to see thousands of liberals denouncing Clarence Thomas for today’s decision—despite the fact that even if he voted otherwise, the outcome would have been the same.
And please, dear reader, don’t report any of these racist tweets. Leave them up. Let the world see who they really are.
📍“Token Tim Scott”
— Chronicles of Racist Liberals (@liberalsracists) June 29, 2023
.
📍“Uncle Tom got his. Why does he care if anyone else gets help?”
.
📍“I’m more confused by a Black man wearing a “Blacks for Trump” shirt in 2021.”🤨
. pic.twitter.com/pcS3kOkbKO
I despise this man with my whole heart. He is as anti Black as a confederate. Uncle Tom Ass can kiss my entire 🍑 https://t.co/2Mx0bOszmq
— Michelle_BYoung (@michelle_byoung) June 29, 2023
To be clear, 5 white extremist corrupt fascist republicans in SCOTUS and their unbelievably criminally corrupt Uncle Tom named Clarence Thomas who benefited from affirmative action his entire despicable life just to abuse power killed affirmative action today.
— Ricky Davila (@TheRickyDavila) June 29, 2023
What a disgrace.
Why don’t we call Clarence Thomas what he is???
— rayhaz (@rayhaz2) June 29, 2023
An Uncle Tom… pic.twitter.com/OxD1lXpsEp
Clarence Thomas (Uncle Tom) voted to end affirmative action but benefited, was admitted to Yale Law School 1971 part of an aggressive (and successful) affirmative-action program with a clear goal:10 % minority enrollment. Yale offered him generous financial aid. Damn hypocrite
— Spenc4hier (@Spenc4hier) June 29, 2023
Just because Thomas was admitted at a time that Yale Law School gave black people a preference, doesn't mean he wouldn't have been admitted without it.
You have to remember, Clarence Thomas is under the thumbs of billionaires , and millionaires. Just call him Uncle Tom. https://t.co/7Go4PdlNl9
— jake4u48 (@girolamo5151) June 29, 2023
Uncle Tom is exactly like Anita said he would be. We should have listened to her instead we were mesmerized by the crap. Impeachment is the only way to get his ass off the court
— Ben Charles M (@phxphlash2274) June 29, 2023
I can guarantee you that you, your family, and friends had benefited from Affirmative Action. Just another Uncle Tom in the image of Clarence Thomas who was selected because he was black and conservative.
— Army Veteran Tired of White Nationalism (@BobbyK_57) June 29, 2023
Well, Clarence Thomas has proven to be the Uncle Tom that he is .
— Lucid Thinker (@LucidThinker_1) June 29, 2023
And why is Justice Thomas being called an Uncle Tom? Because they think all black people have to think alike—a view denounced in today’s decision:
But when a university admits students ‘on the basis of race, it engages in the offensive and demeaning assumption that [students] of a particular race, because of their race, think alike[.]’ Miller v. Johnson, 515 U. S. 900 … (1995).
Of course, the Supreme Court’s decision today couldn’t possibility have been influenced by the reaction to it. But this is hardly the first time Clarence Thomas has been called an Uncle Tom, or the first time someone in public life has suggested that one can judge the content of your character by the color of your skin. We doubt the Supreme Court was trying to ding President Biden in that passage above, but he has claimed that if you can’t figure out whether to vote for him, ‘you ain’t black.’
FLASHBACK— Biden: "If you have a problem figuring out whether you're for me or Trump, then you ain't Black." pic.twitter.com/QSOSeDpg2q
— Steve Guest (@SteveGuest) February 27, 2023
And he claimed that the black community is not diverse, compared to the Latino community:
Joe Biden: "Unlike the African American community with notable exceptions, the Latino community is an incredibly diverse community." https://t.co/BaTrycHSLm pic.twitter.com/ExuGTqAsMk
— Gritty is the Way (@Gritty20202) July 12, 2022
So, while Joe Biden is easily the most explicitly racist president in this author’s lifetime (we are nearly 51 years old if you were wondering), he’s pretty typical for his party.
Finally, what also probably broke any and all respect this Court had for the Ivory Tower was the outright discrimination against Asians Americans in this case. This was apparently based on the view that Asian Americans didn’t face discrimination—unlike black people or Hispanics. This author is married to a lovely Asian woman, and we know for a fact Asian people do face discrimination—besides that committed against them under the guise of affirmative action. But Asian Americans have committed the cardinal sin of being too successful, despite the discrimination they face, so very often affirmative action programs add to that discrimination.
We’d love to say today that Asian Americans can now face a fair chance in college admissions—that everyone enjoys an equal opportunity—but we expect there to be resistance to this ruling. One might be tempted to quote Martin Luther King, Jr. describing his dream, but we would prefer to quote Thaddeus Stevens, who Fawn Brodie called the Father of the Fourteenth Amendment, when he said that it was his dream that under the Equal Protection Clause that ‘that no distinction would be tolerated in this purified Republic but what arose from merit and conduct.’
We are not there yet, but we have taken a massive step in the right direction—probably thanks to the hubris of modern higher education.
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