Affirmative Action Ruled Unconstitutional by U.S. Supreme Court: Superficial v. Substantive Diversity | SYSTEM UPDATE #108
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Welcome to a new episode of System Update, our live nightly show that airs every Monday through Friday at 7 p.m.
Eastern, exclusively here on Rumble, the free speech alternative to YouTube.
Tonight, in a landmark ruling with implications far beyond this specific case, the U.S.
Supreme Court today struck down the use of race as a factor in the admissions process of both Harvard and the University of North Carolina.
In a 63 ruling, the court held that holding a person's race against them when deciding who is and is not admitted to universities violates the right of equal protection guaranteed by the 14th Amendment to the Constitution.
In sum, the practice long known as affirmative action, whose advocates have long claimed is necessary to combat racial discrimination, Is now finally classified by the court as itself a pernicious form of racial discrimination, the type of prejudice the 14th Amendment was enacted to combat.
The principles enshrined in today's ruling extend far beyond the university setting.
The use of race-based preferences of this kind has become pervasive in the U.S.
They are used in the hiring process by the largest corporations and by state and federal government agencies in determining which citizens are and are not eligible for a wide array of benefits.
We will examine the ruling, its key consequences, and most of all, these two pressing questions.
First, does the color of a person's skin determine the type of experiences and perspectives they should be expected to bring to an academic institution, a job, or a political conversation?
Or is that merely just a type of superficial diversity, weaponized by the nation's most powerful institutions to avoid and even prevent real diversity of thought and experience?
And then secondly, can the assumption that a person's race determines their thoughts and experiences ever be anything more than the type of crude, primitive, and offensive stereotyping which its defenders claim to oppose?
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For now, welcome to a new episode of System Update, starting right now.
The Supreme Court 6-3 ruling today against the admissions process of Harvard University and the University of North Carolina, both of which, like most major elite institutions in the United like most major elite institutions in the United States, now use race as a factor for determining who is admitted and who is not, who receives certain benefits and who does not.
That ruling struck down those race-based admissions process as a core violation of the Equal Protection Clause of the United States Constitution.
And we're going to go through the key aspects of the majority ruling, which was written by John Roberts and signed onto by five other conservative members of the Supreme Court.
The three justices in dissent are the three liberal members of the court.
And we'll also review the dissent arguments and how these two World views intersect in terms of what the Constitution actually guarantees.
But before we do that, I want to raise the question, which I think is really at the heart of this case and has been the heart of this debate for a long time.
The argument for affirmative action presented by the universities, knowing that they have to present what the court calls a, quote, compelling interest to discriminate against people on race, which is exactly what these universities admit that they do,
The compelling interest they present is that diversity is an important asset for an academic institution because diversity ushers in all sorts of different and unique perspectives and opinions and experiences that, without racial diversity, a university could not have.
And the core assumption, obviously and necessarily, of that argument is that what determines a person's perspective and experience is the color of their skin.
Therefore, it stands to reason, a black person will have a different perspective on the world, a different set of opinions, a different set of experiences that are formative to their worldview than a white person will, or a Latino, or an Asian person, or a Middle Eastern person will.
It reduces people essentially to their race and imposes the expectation, really the obligation, That by virtue of the color of your skin, you are expected by the elite society, the elite sectors in the United States, these academic institutions, which are some of the most powerful and some of the wealthiest institutions in the world.
They have hundreds of billions of dollars of endowment.
They own enormous amounts of real estate.
And what these institutions have been telling the entire country and the world for a long time is that who you are is at least in significant part based on what your race is, and that from your race, We have realistic and reasonable expectations of what you're likely to bring as a human being to our university.
Now, I was involved last year in a discussion slash debate with two academics, one of whom is Cornel West, who's currently running for president on the Green Party ticket.
He's long been a left-wing academic at institutions like Dartmouth and I believe he's at Cornell now.
We'll check that.
I don't know exactly with what institution, but he's been at the elite institution academic level for a long time.
And the other person with whom I was debating was Judith Butler, who, like Cornel West, is also a longtime left-wing professor at various elite institutions.
I believe I had Professor Butler, as a matter of fact, when I was a freshman taking a philosophy course at George Washington University.
In fact, I'm pretty sure I did.
Now the topic of that debate was identity politics and we were discussing the very aspect of identity politics and we were exploring the argument that I had raised that institutions of neoliberal power like the CIA and Wall Street now use superficial and surface diversity In order to maintain the same policies they've always implemented, even when they were a lot more white.
In other words, it's just a very kind of decorative diversity.
Nothing substantive has changed.
It's just the color of the skin of the people implementing the same policies.
And of course, there are all kinds of means On the internet designed to reflect that like a Yemeni family looking up at the sky and seeing a drone coming down on their heads and their children's heads and their homes and they say, oh the good news is I hear that they now use black women in order to send these drones instead of white males.
Reflecting the fact that this is how this kind of superficial diversity is weaponized and utilized As a way of pretending the status quo has changed, that it's gotten more progressive or more radical or more inclusive, whatever, when in reality the same exact qualities are continuing.
And in the course of this debate, which was sponsored by the Holberg Fund, which is affiliated with a university, Judith Butler out of nowhere decided to complain that the panel did not have any women of color on it.
It had her, a openly lesbian woman, who now apparently is non-binary as well.
She identifies, I apologize for misdending her, actually.
They identify with the pronouns they, them.
It has Cornel West, a black man, as myself, a gay man.
But she apparently thought, they apparently thought, Professor Butler apparently thought that, that's really not intentional, that the panel was insufficiently diverse and said that we ought to have a woman of color on the panel, that that would have changed the nature of the discussion because that that would have changed the nature of the discussion because it would have brought in perspectives that were otherwise
And the people that Professor Butler named as examples of the kind of woman of color we could have included were people exactly like Professor Butler.
Left-wing academics at elite institutions just who happen to be black instead of white.
We have the same exact worldview, the same exact viewpoint.
That's why Professor Buller wanted them in the conversation.
They wouldn't have changed the conversation.
They would have just changed the appearance of the conversation.
And that was the discussion that we ended up having as a result of the suggestion raised by Professor Butler.
So I just want to show you an excerpt because it, to me, goes to the heart of this entire question about whether race-based admissions and affirmative action in general actually ushered in any kind of meaningful diversity or whether it's just a fig leaf to pretend that these institutions are changing.
Whose lives have been degraded or whose lives have been effaced?
Whose perspective has not been heard or not included?
So, for instance, here we are, and we're all very pleased to be here, but I was mindful that we don't have a woman of color in this conversation, and what difference would it make, I would ask, to have a woman of color here?
Now, you might say, oh, that's identity politics, but maybe not.
Maybe this kind of exclusion is a patterned one.
Maybe we could look at many institutions in which that exclusion is taking place or where intellectual dialogue is assumed to be taking place among men of color and queer folk and well-meaning white people.
But we don't have that perspective here.
Now, it's not a single perspective.
Even class goes across color.
Like, how has class lived as race?
Right?
We have that question.
How has race lived as class?
Paul Gilroy taught us how to... and Stuart Hall.
They insisted, and intersectionality within black feminism insists on that kind of questioning.
So we need to actually open up to new social movements and to hear what they're saying and to find ways of linking if our movements are going to be transnational and fulfill radical ideals.
Glenn Greenwald, would you like to pick any of that up?
Yeah, absolutely.
I think, you know, I'm finding this conversation fascinating.
I'm, you know, doing a lot of thinking as I'm listening.
I think one of the things that Judith said at the very beginning is something I just want to focus on for a second, which is noting the lack of women of color participating in this conversation and what impact that exclusion might have or that addition might have On the conversation, to me, this gives a really great window into the complexities of how we talk about identity politics.
So you can certainly imagine that if you were to, you know, we obviously have racial diversity and gender diversity and sexual orientation diversity and other kinds of diversity on the panel.
It's true we don't have a woman of color.
So how are that, how might that, how does that exclusion affect the discourse?
How might its addition alter it?
It depends a huge amount on which women of color you decided to integrate into the conversation.
So we could, for example, imagine that we invited Kamala Harris or Stacey Abrams to participate in the conversation.
They would be a woman of color.
That would maybe change the conversation in a little bit of a way.
Maybe it wouldn't.
You could pick Nikki Haley, or Tulsi Gabbard, or Condoleezza Rice, or Candace Owens, all women of color.
That would probably change the conversation even more.
And then you could pick... We'll just change it, brother.
It would be more impoverished.
We'll go right ahead.
Yeah, no, I'm not saying it'd be better or worse.
In fact, that's exactly my argument.
I just want to be explicit about what the impact of it is.
Yeah, and maybe, and I think in some senses it may not have an impact, depending on who it was.
And then you can imagine, for example, picking someone who isn't well-known, who's, you know, somebody who's a single mother and unemployed, or works as a construction worker, is a police officer, who's a woman of color, who probably would bring A vastly different view than any of those other people that I named.
It would change the conversation in much different ways as well.
And so I think it's difficult to predict if you say, well, what would our conversation be like if we added a woman of color?
Because the range of views that a woman of color would bring would be so wide ranging depending on who they are and what their position in life is.
And I think one of the things that always interests me so much is If you look at elite discourse about, say, law and order and the police, and this kind of, you know, slogan that arose in the last year from the murder of George Floyd of Defund the Police and the like, that has a lot of currency among kind of elite guardians of discourse of all races.
And then you look at polling data of poor communities, black communities, brown communities, and you say, Do you think there should be fewer police in your communities, more police, or the same amount?
The overwhelming majority of people in multiracial working-class communities will say, I want the police in my community either as much as they are or more.
And very, very few will say, I want fewer.
And I think as well that when you look at the lack of diversity, to the extent you want to analyze them in the panel, you can of course say, well, there's not a woman of color, but there's also not someone who say is a member of the working class.
I grew up in a working class.
Family.
I grew up in a working class neighborhood, but let's be real.
Let's be real about what our lives currently are.
We're people who have spent a lot of time in elite academic institutions, who have a lot of career and economic stability because of that.
So you could bring a working class person into this discussion as well.
Somebody, I don't mean who has working class origins as I do, and I believe probably everyone here to some extent does, but someone whose life right now has been defined by being a member of the working class and all of the hardship that that has entailed over the last 20, 30 years.
A white man, for example, from a town with shuttered factories and opioid overdoses.
And that would bring an entirely different perspective As well, and so I think when we talk about diversity, it is important to think about the full range of diversity, and not just a certain kind.
Because in so many ways, the life in America is, you could certainly argue, defined at least as much by one's class as by one's sexual orientation, gender, or race.
And I feel like a lot of times in identity politics discourse, that gets overlooked.
I mean, the danger here, yeah, the danger here is again, you know, once you slide down the slippery slope of labels and various personal categories, then you're missing out on not just the quality of the conversation, because I believe with Adorno, the condition of truth is to allow suffering to speak.
You can talk about the suffering of other people without being a member of that group.
You can have a deep concern without being a member of that group.
All right, so there you get the gist of it, and that to me is the essence of this debate and always has been.
The defense of affirmative action is based on the irrational and deeply offensive view that you can understand a person's ideology and worldview and their range of experiences simply by looking at their race, or even just assuming that people of different races will think differently about the world, which is a nauseating way of trying to understand human beings and how they operate and function.
And if you're looking for diversity in the sense that people's experience determines their worldview, that we're the byproduct of our experiences and how we're shaped as human beings, which I do think is a more rational view, you would certainly then look not to race, but to say to class background and to current class status as a far more reliable indicator of the differences between people.
I would bet any amount of money that a very poor white person who lives in a town that has been de-industrialized, that is filled with joblessness and addiction, has vastly more in common in terms of their worldview and their thought process and their experience
With a person who is black in the same class predicament or is Latino or Asian or Middle East, then they deal with an extremely wealthy black person.
They would have infinitely more in common, for example, with their neighbor who's white than they would with Malia Obama, who's black and went to Harvard but grew up in much different circumstances.
to put that mildly.
And that is always the essence of the problem, is that elite institutions don't really want to diversify.
They don't want diversity of thought.
They don't want diversity of opinion.
They want superficial diversity so they can feel like they're changing things.
Like Judith Butler wants some black female professor at Professor Butler's side who will echo exactly the same things Professor Butler thinks because they have the same lives, because they work in the same institutions for the same, for decades and decades.
They have the same socioeconomic status, the same class interests.
But the idea that there should be some regular person who's a nurse or who's a police officer or whatever of any race never occurs to them.
Which is why Professor Butler didn't suggest that and didn't complain about that.
That we all had socioeconomic homogeneity and diversity only in the superficial sense.
And one of my experiences is I've worked in media for quite a while now and I used to hear all the time People complaining about the lack of diversity in newsrooms, the need to diversify newsrooms, and what they always meant by that was they wanted to hire more black people whose parents are Goldman Sachs partners or cardiac surgeons or wealthy lawyers.
Or Latino people who are as well, who have the same experiences as they do, and it was never about class.
It never is about class, because that's when you would get real diversity of thought, and that's what they really do not want.
If you look at people's political opinions, class is by far the biggest formative feature of how people answer polling data, how people view the world.
And that is at the heart the fraud of the affirmative action that got struck down today as being what it is, which is purely about discriminating based on people according to their race.
Now, as I said earlier, there is a now longstanding practice on the part of these institutions to pretend that they are being diverse when in fact they're changing absolutely nothing.
And that's the whole point.
One of the first times I really focused in on this was in 2015.
The British government, here you see the official Twitter account of the British Prime Minister, who I believe at the time was Theresa May.
She was touting the celebration of LGBT rights on the part of the GCHQ, which is the British counterpart to the NSA, the spy agency.
And the GCHQ is a significant topic of reporting that we did based on the Snowden Archive.
And the thing about the GCHQ is it is a far more aggressive and less constrained version of the NSA.
Whenever the NSA confronts spying that it wants to do but can't because of illegalities or other ethical constraints, they pass it on to the GCHQ.
That's what the British do.
They prove their worth by going lower and dirtier.
And that's what the GCHQ is.
Not in the past, but still to this very day.
And yet they bathed themselves in the rainbow flag and celebrated their diversity.
The fact that now they have gay people there who will spy on you and not just straight people as a reason that we should trust this institution more.
And at the time I wrote an article based on what I saw and the headline there was GCHQ's Rainbow Lights.
Exploiting social issues for militarism and imperialism and the sub headline was support for Western aggression and policies of imperialism is now manufactured by parading them under the emotionally manipulative banners of progressive social causes.
And this is something now every institution does.
Here's the FBI in March of this year celebrating International Women's Day, where current and aspiring leaders from the FBI gather at the Bureau's headquarters for a leadership symposium focused on equipping female leaders with the tools needed to overcome challenges and redefine their success on the international stage.
So now the people who are abusing their power and spying on Americans and politicizing the law enforcement powers of the federal government are female and non-binary and gay and I guess you're supposed to feel good about that just like you're supposed to feel good about Harvard and the University of North Carolina if you look and see a bunch of rich kids who instead of being white are now black and Latino as well as a result of these discriminatory policies and that's what these institutions are designed to do.
Probably the The event that most conveyed the fraudulent nature of this form of diversity that Harvard and the University of North Carolina have integrated into their admissions process and that was struck down today was this ad for the CIA about the way in which the agency celebrates all different kinds of people that now work there and overthrow governments and kill people in clandestine operations and don't change anything other than the way that people who work at the CIA look.
Let's watch that video.
When I was 17, I quoted Zora Neale Hurston's How It Feels to be Colored Me in my college application essay.
The line that spoke to me stated simply, I am not tragically colored.
There is no sorrow damned up in my soul nor lurking behind my eyes.
I do not mind at all.
At 17, I had no idea what life would bring, but Zora's sentiment articulated so beautifully how I felt as a daughter of immigrants then and now.
Nothing about me was or is tragic.
I am perfectly made.
I can wax eloquent on complex legal issues in English while also belting Guayaquil de mis amores in Spanish.
I can change a diaper with one hand and console a crying toddler with the other.
I'm a woman of color.
I am a mom.
I am a cisgender millennial who's been diagnosed with generalized anxiety disorder. - I mean, in sum, who gives a shit?
This is still the CIA.
This is still the CIA and the agents that it employs to do all the same things that it did before.
No one is any better off or happier because the people destabilizing their countries or killing people are cisgendered millennial Latinas who are first-generation immigrants diagnosed with whatever mental health pathology she's boasting about.
It doesn't matter.
It doesn't make any difference at all.
This is the way that the CIA brands itself, markets itself without changing nothing, just like Harvard does, just like these other early institutions do.
It's a form of crude discrimination, the only benefit of which is inferred on the institutions themselves as a branding technique to pretend that they now have greater diversity, even though the people there have very similar experiences to one another because it's only superficial diversity.
Now, it's so interesting whenever These debates happen about what the Constitution guarantees and within minutes of the Supreme Court's very lengthy ruling today.
You could find every pundit on Twitter definitively opining on it, even though they obviously had not read the decision.
Now, this is an issue that has been around for a long time.
People might have read the briefs.
Nonetheless, if you're going to opine on a Supreme Court ruling, it's probably a good idea to at least pretend that you've read it by not immediately coming forth and denouncing it within less time than it would take to even read 15% of it.
But aside from the fact that most typically the provisions, the key reasoning of the decision is not analyzed as we're about to do, more notably still is the fact that the constitutional guarantees on which these rulings are based also are barely ever mentioned because they don't matter.
No one cares what the Constitution guarantees.
All they care is what outcome they prefer.
So the Constitutional guarantee at stake in the case today, and in this debate in general, is the guarantee of equal protection under the 14th Amendment.
So let's look at what that says.
We have it up on the screen.
Here is Section 1.
All persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and of the state wherein they reside.
No state shall make or enforce any law which shall abridge the privileges and immunities of the citizens of the United States, nor shall any state deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the law.
In other words, Everyone has to be treated equally before the law.
You cannot confer certain benefits on people because they belong to a particular racial group or deny benefits to people because they belong to a different racial group.
If this guarantee means anything, it has to mean that.
And it's so ironic that a lot of the liberals who denounce that plain reading of this amendment We'll say the intent at the time this amendment was acted in 1868 was in order to aggressively redress racial injustice by doing things like affirmative action.
Now it's amazing to watch them use that form of textual interpretation because that is the argument typically invoked by people like Antonin Scalia.
When the argument is made that various provisions of the Bill of Rights, for example, guarantee the right to an abortion or the right to same-sex marriage, Scalia will argue that at the time that the amendments were enacted, nobody thought that they were guaranteeing the right of abortion or same-sex marriage and therefore the amendment cannot possibly be read or interpreted to guarantee that.
That has been long the right-wing interpretive textual argument that the left mocks and rejects whenever it suits them.
And by the left, I mean just standard liberals.
And yet here, that is the exact argument they resort to without very much historical basis.
What is particularly notable here is the history of affirmative action jurisprudence.
there have been other Supreme Court cases that have considered this exact question, whether schools and universities can consider race in the admission process.
And it's basically been a gigantic mess of jurisprudence because the people who were affirming and approving of the use of race were simply affirming the outcome.
There was no constitutional dogma or doctrine that enabled them to reach that conclusion.
There was certainly nothing in the text of the Constitution that they just wildly invented things out of whole cloth in exactly the way that Congress would do.
The difference, of course, being that Congress is elected and subject to democratic accountability and members of the Supreme Court are not, which is why it is important sometimes for members of the Supreme Court to invalidate democratically elected laws, but only when those practices that are democratically but only when those practices that are democratically sanctioned stay within the boundaries of the Constitution.
Once they start legislating in these very detailed ways that have no relationship to the Constitution, that is when you get an illegitimate use of judicial power.
And the last time the Supreme Court ruled on this was in Grutter vs. Bollinger.
It was a majority opinion written by Sandra Day O'Connor, who prided herself on being in the swing vote, like Anthony Kennedy did, and therefore so many of her opinions took neither one position or the other, but just found some middle compromise ground.
The way some member of the legislature would do negotiating various provisions in a legislation in order to garner a majority in support of it.
And what the Grutter opinion said back in 2003, so basically 20 years ago, is the following, quote, "The court is satisfied that the law school, it was the University of Michigan, adequately considered the available alternatives it was the University of Michigan, adequately considered the available alternatives to using race in the admissions The
The court is also satisfied that in the context of individualized consideration of the possible diversity contributions of each applicant, the law school's race-conscious admissions program does not unduly harm non-minority applicants.
Finally, race-conscious admissions policies must be limited in time.
The court takes the law school at its word that it would like nothing better than to find a race-neutral admission formula and will terminate its use of racial preferences as soon as practicable.
The court expects that, ah, 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.
Where did that 25 years come from?
She just, like, pulled it out of her hat.
Like, yeah, I think maybe 25 years from now, society will be sufficiently race-blind that we'll no longer need affirmative action.
In 25 years, even though it's constitutional now, it won't be constitutional then.
The idea that there's anything in the Constitution that even remotely suggests that that is a proper Form of behavior or approach analytically for a Supreme Court justice is preposterous, and yet that has been how these decisions have been handled.
Now, today's decision, which is entitled Students for Fair Admissions, Inc., versus the President and Fellows of Harvard Law of College, which also included the race-based admission process used by the University of North Carolina.
Talked about these prior decisions, including the Bakey decision in 1978, which kind of gave approval to the use of race-based admissions by the University of California, Berkeley, although even there, the jurisprudence was even more of a mess.
And so this is what the court was dealing with.
Just to give you a sense for how unhinged and unrooted All of these rulings have been approving of these race-based admissions when it comes to the only document they're supposed to be enforcing, which is the Constitution in this case.
The court first considered whether a university may make race-based admissions decisions in Bakke, that's the 1978 case, in a deeply splintered decision that produced six different opinions.
Justice Powell's opinion for himself alone, nobody signed on to that opinion, even though it got interpreted later on as the majority opinion binding the court.
Would eventually come to quote serve as the touchstone for constitutional analysis of race conscious admissions policies.
Quoting the Grutter case in 2003 which we just showed you by Sandra Day O'Connor.
After rejecting three of the university's four justifications as not sufficiently compelling to allow race as a factor, Justice Powell turned to its last interest as starting to be compelling, namely obtaining the educational benefits that flow from a racially diverse student body.
Justice Powell found that interest to be a, quote, constitutionally permissible goal for an institution of higher learning, which was entitled as a matter of academic freedom, quote, to make its own judgments as to the selection of its student body.
Now remember, this is the same court that is currently deciding whether tiny little bakeries or tiny little internet firms, not gigantic institutions with hundreds of billions of dollars in endowments and massive real estate holdings that affect people's lives in the most fundamental ways, just tiny little small businesses.
have the right to refrain from saying, making a cake that celebrates same-sex marriage because their religious conscience teaches them that it's wrong to do that.
Those people don't have, according to this mindset, any kind of rights of conscience.
But universities, these public institutions included, can just decide whatever they want to do regardless of what the Constitution says.
Even the liberals on the court were compelled to admit that that was not an unlimited Unlimited autonomy because the Constitution does govern what they can do.
Hear from the Biggie case.
But, quote, A university's freedom was not unlimited.
Quote, Racial and ethnic distinctions of any sort are inherently suspect.
Justice Powell explained.
An antipathy toward them was deeply, quote, Rooted in our nation's constitutional and demographic history.
This is today's court.
The second risk is that race would be used not as a plus for, say, minority groups, but as a negative to discriminate against those racial groups that were not the beneficiaries of the race-based preference.
A university's use of race accordingly could not occur in a manner that, quote, unduly harmed non-minority applicants.
To manage these concerns, Grutter, 25 years later, imposed one final limit on race-based admissions programs.
At some point, the court held they must end.
Recognizing that, quote, enshrining a permanent justification for racial preferences would offend the Constitution's unambiguous guarantee of equal protection, the Grutter Court that approved the University of Michigan's race-based admissions expressed its expectations that, quote, in 25 years, the use of racial preferences will no longer be necessary to further the interest approved today.
20 years have passed in Scrooter with no end to race-based college admissions in sight, but the court has permitted race-based college admissions only within the confines of narrow restrictions.
Such admissions programs must comply with strict scrutiny, may never use race as a stereotype or negative, and must at some point end.
The university's admissions system fails each of these criteria and must therefore be invalidated under the Equal Protection Clause of the 14th Amendment, what we just showed you.
The court today said, by accepting race-based admissions programs in which sub-students may obtain preferences on the basis of race alone, respondents' programs tolerate the very thing that Gutter foresaw, stereotyping.
The point of respondents' admissions programs is that there is an inherent benefit in race qua race, in race for race's sake.
Respondents admit as much.
Harvard admission process rests on the pernicious stereotype that, quote, a black student can usually bring something that a white person cannot offer.
The University of North Carolina is much the same.
It argues that race in itself, quote, says something about who you are.
That's their argument.
Race in itself says something about who you are.
Today's court said, we have time and again forcefully rejected the notion that government actors may intentionally allocate preferences to those who, quote, may have little in common with one another except for the color of their skin.
The entire point of the Equal Protection Clause is that treating someone differently because of their skin color is not like treating them differently because they are from a city or from a suburb or because they play the violin poorly or well.
Those are real differences between people.
Unlike race, quote, one of the principal reasons race is treated as a forbidden classification under the Constitution is that it demeans the dignity and worth of a person to be judged by ancestry instead of by his or her own merit and essential qualities.
But when a university admits students, quote, 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.
Or at the very least, alike in the sense of being different from students of other races.
In doing so, the university furthers, quote, stereotypes that treat individuals as the product of their race, evaluating their thoughts and efforts, their very worth as citizens, according to a criterion barred to the government by history and the Constitution.
Such stereotyping can cause continued hurt and injury, quoting a Supreme Court case from the past, contrary as it is to the core purpose of the Equal Protection Clause.
Now, again, I just want to note here for a minute, I'm going to read a little bit more.
This is the argument liberals are indignant about.
That it is offensive to evaluate an individual Based on the assumption that their race tells us things about who they are and what they think and the perspective that they bring.
That is something that liberals are offended by now.
That they're indignant over the idea that of course we should bring diversity to academic institutions.
That is of course an institutional value to have exposure to different ideas.
But believing that judging people based on race is the way to get you that diversity is necessarily grounded in a noxious assumption about human beings, which even if you want to believe it, is one the Constitution fundamentally forbids, namely that it's a person's race that tells us about who they are and what they think.
Looking at the world from the perspective of people who are non-white who want to be able to make their way in this world, who want to exercise their right of critical thinking, and not be limited by their race, nothing is more offensive than this perspective that the court finally struck down today, at least mostly.
The majority opinion goes on.
Quote, by 1950, the inevitable truth of the 14th Amendment had begun to reemerge.
Quote, separate cannot be equal.
Now, here they're quoting the landmark ruling in Brown v. Board of Education, which overturned Plessy v. Ferguson.
We can go back.
Go back.
Plessy v. Ferguson was a court ruling that said, separate but equal in school systems, meaning a white school here and a black school here, does not offend the Constitution as long as the schools are equal.
And the Brown v. Board of Education overturned that ruling and said, separate but equal is inherently unequal if you're separating people by race, based on the assumption that they cannot intermingle because of who they are.
And the court is saying today, we're doing what Brown v. Board of Education did.
We're overturning racist precedent.
The court said, quote, the culmination of this approach, namely the inevitable truth of the 14th Amendment, that separate cannot be equal, the culmination of this approach finally came in Brown versus the Board of Education.
There, the court overturned the separate but equal regime established in Plessy and began on the path of invalidating all de jure racial discrimination by the states and federal government The conclusion reached by the Brown Court was unmistakably clear.
The right to a public education, quote, must be made available to all on equal terms.
That's the celebrated Brown v. Board of Education.
The court reiterated that rule just one year later holding that, quote, full compliance with Brown required schools to admit students, quote, on a racially non-discriminatory basis.
In the years that followed, Brown's, quote, fundamental principle that racial discrimination in the public education is unconstitutional reached other areas of life.
For example, state and local laws requiring segregation in busing, racial segregation in the enjoyment of public beaches and bathhouses, and anti-miscegenation laws citing all the Supreme Court precedent that ruled that those forms of racial discrimination were also unconstitutional.
These decisions and others like them reflect the core purpose of the Equal Amendment Clause, quote, doing away with all governmentally imposed discrimination based on race.
Eliminating racial discrimination means eliminating all of it.
Accordingly, said the court, the court has held that the equal protection clause applies, quote, without regard to any differences of race, of color, or nationality.
It is, quote, universal in its application.
The guarantee of equal protection cannot mean one thing when applied to one individual and something else when applied to a person of another color.
Any exceptions to the Equal Protection Clause's guarantee must survive a daunting two-step examination known as strict scrutiny, which asks first whether the racial classification is used to, quote, further compelling government interests, and second, whether the government's use of race is, quote, narrowly tailored or necessary to achieve that interest.
Acceptance of race-based state action is rare for a reason, quote, distinctions between citizens, based solely because of their ancestry, are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality.
Now, even today's court recognized that there may be times when you can distinguish citizens based on their race.
But because of how offensive it is to the Constitution, one needs to present a compelling interest in order to do it, a very...
The highest constitutional standard there is.
So you can imagine, for example, a disease that strikes certain races more than others.
There are diseases like that.
And because of that, one can imagine a government program that spends more resources on people of a certain race in their community than others when combating that disease.
There would be a compelling interest narrowly tailored to the racial distinction in question.
And the university's tried to argue that they have a compelling interest to discriminate on the basis of race in the admissions process.
Namely, that they want to bring diversity to their student body, and to do so, they have to discriminate on race.
I guess the university's arguments are, if we don't know the people, and this is why it's so offensive, if we can't analyze the applicants by race, we're gonna end up with a student body that's almost entirely white and Asian.
Or Indian.
Or some other emphasis on particular groups.
In other words, liberals believe that black and Latino students, and constantly want to convey this to them, that they cannot succeed on their own.
That's the argument that these institutions constantly drum into people's heads in the name of racial egalitarianism.
That is another thing that makes it so offensive to constantly tell non-white kids Then no matter how hard they work, you cannot succeed.
And so about that, the court said, quote, It is far from evident how assigning students to these racial categories and making admissions decisions based on them furthers the educational benefits that the universities claim to pursue.
For starters, the categories are themselves imprecise in many ways.
Some of them are plainly overbroad, By grouping together all Asian students, for example, respondents are apparently uninterested in whether South Asian or East Asian students are adequately represented, as long as there is enough of one to compensate for a lack of the other.
Meanwhile, other racial categories, such as Hispanic, are arbitrary or undefined.
And still other categories are under-inclusive.
When asked at oral argument, quote, how are applicants from Middle East countries classified, such as Jordan, Iraq, Iran, and Egypt?
The University of North Carolina's Council responded, quote, I do not know the answer to that question.
Indeed, the use of these opaque racial categories undermines instead of promotes the university's goals.
The university's main response to these criticisms is essentially, quote, trust us.
That's always the argument of liberal elite institutions.
We know better.
We're wise, we're well-intentioned, we're benevolent and we're compassionate and therefore you should let us do what we want because we are in search of the good.
That's all you need to know.
Give us the leeway and we will do good because we're good people and we know best.
About that posture, the court said, quote, none of the questions recited above need answering, they say, because universities are, quote, owed deference when using race to benefit some applicants but not others.
It is true that our cases have recognized a, quote, tradition of giving a degree of deference to a university's academic decisions, but we have been unmistakably clear that any deference must exist, quote, within constitutionally prescribed limits.
And that, quote, deference does not imply abandonment or abdication of judicial review.
Universities may define their mission as they see fit.
The Constitution defines ours.
Courts may not license separating students on the basis of race without an exceedingly persuasive justification that is measurable and concrete enough to permit judicial review.
As this court has repeatedly reaffirmed, quote, racial classifications are simply too pernicious to permit any but the most exact connection between justification and classification.
The programs at issue here do not satisfy that standard.
For the reasons provided above, the Harvard and University of North Carolina admissions programs cannot be reconciled with the guarantees of the Equal Protection Clause.
Both programs lack sufficiently focused and measurable objectives, warranting the use of race, unavoidably employ race in a negative manner, involve racial stereotyping, and lack meaningful endpoints.
We have never permitted admissions programs to work in that way and we will not do so today.
At the same time, as all parties agree, 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.
Now, let me stop there.
Let me read that again, because that's a crucial potential loophole that a lot of people are concerned about when it comes to this court ruling, that all it's really doing is pretending to ban race in the admissions process.
But by leaving open this loophole, but I'm going to read you again, it's actually just making it a little bit more bureaucratically difficult for universities to continue to do what they've been doing.
The court said, you can't use race just as race.
In other words, here are all the black students, here are all the Asian students, here are the white students, here are the Hispanic students, and we're going to now take deliberately eight of these, even though they have less metrics and fewer numbers than the people in these groups.
You can't do that.
But they're saying, but what you can do is that 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.
So you can write an essay, and you can say, I'm a Latino person, and as a result, I faced a lot of discrimination in my life, or I was inspired by my parents who faced discrimination, and the courts can take that into account.
Rather, the universities can.
And what these universities are saying, as they're about to show you in their defiant statements, and what the dissent told them they should think, is that that loophole means they can just continue to use race in their admissions process.
They just need to be a little bit more careful about it by pretending that it's not really race they're using, but someone's discussion of race.
And when the dissent told these universities, here's an easy way around that.
The majority opinion, which was written by Judge Roberts, Justice Roberts said the following, quote, 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.
And then it issued this warning to universities, quote, a dissenting opinion is generally not the best source of legal advice on how to comply with the majority opinion.
Quote, what cannot be done directly cannot be done indirectly.
The Constitution deals with substance, not shadows.
And the prohibition, quote, against racial discrimination is leveled at the same thing, at the thing, not the name.
A benefit to a student who overcame racial discrimination, for example, must be tied to that student's courage and determination, or a benefit to a student whose heritage or culture motivated him or her to assume a leadership role or attain a particular goal must be tied to that student's unique ability to contribute to the university.
In other words, the student must be treated based on his or her experiences as an individual, not on the basis of race.
Many universities have for too long done just the opposite, and in doing so, they have concluded wrongly That the touchstone of an individual's identity is not challenges, vested, skills built, or lessons learned, but the color of their skin.
Our constitutional history does not tolerate that choice.
Now, the distinction that the court is trying to draw there is, I think, a reasonable one, which is, let's go back to the example of Malia Obama.
You really can't imagine anybody in the world who grew up in a more privileged way than Malia Obama.
She's definitely a black woman in the United States with a history of racial discrimination.
And yet her parents are among the world's richest, most powerful, and most famous people.
Most privileged people.
People who can open doors that almost nobody else can for their children.
The idea that a black child of working class parents or poor parents have more in common with Malia Obama Then they do with their white or Asian or Latino neighbor in their working class neighborhood or in their poor neighborhood is disgusting and obviously false.
And yet that's what this race-based admissions process assumes is that Malia Obama, and obviously she's a stand-in here for any black person who grows up rich or privileged, of which Which is true for most black students who get into schools like Harvard based on affirmative action.
They're not generally poor people who are bringing a different perspective.
They're wealthy kids who grew up with wealthy parents and wealthy neighborhoods.
But that is the assumption, is that the way you understand a person is not by their experiences, but by their race.
That's what makes it so offensive and racist and unconstitutional.
And what the court is trying to say is, of course, you can still consider the experiences of any student for any reason.
Someone who's disabled and the things they had to overcome will obviously bring a different perspective than people who never confronted that.
So they're just trying to say just because an experience was based on someone's race doesn't mean you have to exclude it.
You just can't.
Judge a person solely based on race.
Now, let's look at how the universities who... Remember, these are universities who, today, got accused by the Supreme Court, a majority of the Supreme Court, of violating the constitutional rights of hundreds of thousands, if not millions, of kids by discriminating them based on race in a way the Constitution squarely prohibits.
You think they like that?
You think they feel good about that accusation?
Given who they are and what they like to think about themselves, that's exactly what they've been doing.
And remember, a lot of times the victims of this are not white kids.
More often these days, it's Asian students.
Or students from other minority groups, non-white groups, where the group, for whatever reason, gets into these colleges at large numbers if you just use a race-blind process.
It's not just white students who are being discriminated against.
In fact, not even mostly.
It's a large group of non-white people as well.
It's just racial discrimination in its purest form, even though, because it's done by liberals, of course it's deemed to be well-intentioned.
So let's look at how these colleges are now responding to being basically officially ruled to be unconstitutional racist in violation of the Equal Protection Clause.
Here is the official statement from the account of Harvard University on Twitter.
Quote, the Supreme Court decision on colleges and university admission will change how we pursue the educational benefits of diversity, but our commitment to that work remains steadfast.
And then in a press release, Harvard University went further.
Here's their statement on the Supreme Court decision.
They said, quote, dear members of the Harvard community, today the Supreme Court delivered its decision in Students versus Fair Admissions versus President and Fellows of Harvard College.
The court held that Harvard College's admission system does not comply with the principles of the Equal Protection Clause embodied in Title VI of the Civil Rights Act.
The court also ruled that colleges and universities may consider an admissions decision, quote, an applicant's discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise.
We will certainly comply with the court's ruling.
We write today to reaffirm the fundamental principle that deep and transformative teaching, learning, and research depend upon a community comprising people of many backgrounds, perspectives, and lived experiences.
That principle is as true and important today as it was yesterday, so too are the abiding values that have enabled us, and every great educational institution, to pursue the high calling of educating creative thinkers and bold leaders, of deepening human knowledge, and of promoting progress, justice, and human flourishing.
So, they're basically saying, and I'll show you a couple more, including from Princeton, we hear the court's ruling, of course we're gonna abide by it, they're not gonna say we're gonna defy it, But they're saying our commitment to the form of diversity that we believe in, namely that judges people based on race, is stronger than ever.
And we're going to redouble that effort based on what they think is this loophole in the court's ruling, even though the court told them this is not a loophole.
And if you use it as such, you'll be, again, in violation of the law and the Constitution, which guarantees probably decades of moral litigation, claiming that the use of these essays when people talk about being black or Latino or Trans or LGBT or whatever are just attempts to run around, do an end run around this constitutional ruling.
Here we have the video by the President-Elect of Harvard.
I think we're going to put that video up on the screen.
And I want you to hear what she says, but also how she says it.
It's the President-Elect Claudine Gay.
And here's her message to the community about today's ruling.
The Supreme Court's decision on college and university admissions will change how we pursue the educational benefits of diversity.
But our commitment to that work remains steadfast.
It's essential to who we are and the mission that we are here to advance.
For nearly nine years, Harvard vigorously defended our admissions process and our belief that we all benefit from learning, living, and working alongside people of different backgrounds and experiences.
Now that's the key.
We benefit from working alongside people of different backgrounds and experiences, different perspectives, which I think is true.
What is so noxious about their process and their worldview is that they think that the way to judge people's experiences and perspectives is by grouping people into race and assuming that people of one racial group think alike and that they think differently than another racial group.
That is what is so repugnant and so racist about the prevailing liberal ethos on race.
It is the invocation of the exact stereotypes and assumptions that are so reductive about people.
That they pretend that they are combating.
Let's listen to the rest of this.
Nobody thinks that Harvard has this like rich, diverse community of different perspectives and thoughts.
We continue to believe deeply that a thriving, diverse intellectual community is essential to academic excellence and critical to shaping the next generation of leaders.
Nobody thinks that Harvard has this rich, diverse community of different perspectives and thoughts.
Go and listen to any Harvard faculty member or clinical professor or student at Harvard.
Go read the Harvard student press.
Of course you can find some people who are dissenting in a community this large.
Of course there are always going to be some interlopers who got through.
Overwhelmingly, they share the same ideological assumptions, the same allegiance to liberal left ideology, the same beliefs about politics, because they largely come from the same backgrounds, even though they have superficial diversity.
That is what Harvard does not want to change.
What they want is the opposite of what they claim they want.
They want an ideologically homogenized institution, just like the CIA does, just like large corporations do.
And then want to pretend that they've brought in these different perspectives because people have different colors in their skin, even though they come from the same places and therefore have the same interests and therefore the same views.
Here is the response of Princeton University and its professor, or its president rather, Christopher Eisgruber, that is even more explicit in terms of his intent to defy the court ruling while pretending to Abide by it.
Now, the amazing thing about this is I also had Chris Eisgruber as a first-year professor of constitutional law, maybe second year.
And at the time, he was 30 years old.
He was this incredible striver.
He was obviously destined to climb the career ladder very quickly.
He was a full professor at NYU School of Law at the age of 29 or 30.
I think he graduated Princeton and then either Yale or Hartford Law School.
And there was no sense of any of this kind of ideological perspective at all in him.
None.
Zero.
He was colorless and bland and centrist.
Just like kind of a constitutional law nerd.
And now he sounds like the most radicalized left-wing thinker on questions of race because that's the only kind of view that these institutions in this environment tolerate.
That you're required to espouse in order to advance to his position.
Precisely because these institutions don't allow diversity of thought or dissent, they require ideological homogeneity.
Now here's what he says about today's ruling.
The following statement by Princeton President Christopher L. Eisgruber was shared in an email to the university community on June 29, 2023.
Quote, Dear Princeton Community, Today the United States Supreme Court backed away from more than 50 years of established case law allowing colleges and universities to take race into account as one factor among many in a holistic admissions process.
Those presidents wisely recognized that colleges and universities must have some discretion to determine how best to find and attract the talent that exists in every sector of our society.
Today's decision narrows that discretion significantly.
This morning's opinion is unwelcome, unwelcome, and disappointing, but it is not unexpected.
Princeton has been preparing for this possibility with assistance and advice from legal counsel while today's decision will make our work more difficult we will work vigorously to preserve and indeed grow the diversity of our community while fully respecting the law as announced today.
Now by diversity he means exactly what the institution has prescribed has institutionalized which is the kind of diversity that believes and assumes and announces and demands That people of the same race think alike and people of different races think differently.
That's what he means.
And he's vowing to double down on the kind of adversity the court today just ruled was deeply and fundamentally offensive to court constitutional guarantees.
He then concludes, quote, I may have more to say after my colleagues and I have had an opportunity to examine the details of today's decision.
For now, I will reiterate principles and commitments fundamental to this university's mission.
And then he goes on to kind of recite the religion and dogma of the most superficial multicultural form of diversity that, as we've just examined at length, does not actually have any foundation in reality, but instead is designed to subvert that.
Now, I want to show you what the New York Times has to say about today's ruling because they found it extremely interesting.
So here's the Times article.
The headline is, Supreme Court Rejects Affirmative Action Programs at Harvard and UNC.
And in this article, which is a news article, ostensibly, it says, quote, in earlier decisions, sorry, the Supreme Court on Thursday ruled that the race-conscious admissions Why?
programs at Harvard and the University of North Carolina were unlawful, rejecting affirmative action in colleges and universities around the nation, a policy that has long been a pillar of higher education.
The vote was 6-3, with the court's liberal members in dissent.
The decision all but ensured that the student population at the campuses of elite institutions will become whiter and more Asian and less black and Latino.
Why?
Why is that?
Why does the New York Times believe that a policy that does not discriminate people based on race will automatically become whiter and more Asian and less black and Latino?
No.
It's because the New York Times does not believe, and they don't even feel like they have to pretend, To believe that black and Latino students are less capable than their white and Asian counterparts and that's what makes this whole mentality so repulsive.
That is the message they are constantly reinforcing in order to feel good about themselves.
And they are implementing and defending the exact kind of assumptions, crude assumptions, about people's racial identity that doesn't even make sense for all the reasons the court today described about how arbitrary it is and about how imprecise this all is and how just primitive it all is.
Just group people into these vast categories that tell you nothing about who they are or what their lived experiences are.
Now, let me go back to the Supreme Court ruling because the most dramatic dissent was written by Sonia Sotomayor.
She read her dissent from the bench, which is a way of signaling for these judges that they're particularly offended by a particular ruling or they believe a ruling is particularly harmful.
Usually they just publish their ruling in written form, but when you read it from a bench, it's a way of going out of your way to say, I think my opinion today matters even more.
And I found this passage in particular very revealing and also kind of ironic.
She said, quote, The six unelected members of today's majority upend the status quo based on their policy preferences about what race in America should be like but is not, and their preferences for a veneer of colorblindness in a society where race has always mattered and continues to matter in fact and in law.
This rhetoric about unelected judges, obviously that applies to Sonia Sotomayor too.
I don't know if she knows this or not, but she was appointed to that position.
She was not elected to it.
She has life tenure on the bench.
And every single time she has struck down a democratically elected law, which she has done multiple times, such as the laws of states regarding abortion, that she has struck down as insufficiently permissive of abortion rights.
Or when she strikes down a state's democratic decision about what marriage is, voting to say marriage cannot be just between a man and a woman, it has to be same-sex marriage as well.
She's acting as an unelected judge, taking away the right of American citizens to enact laws democratically.
And she's accusing the majority today of enacting their policy preferences when she, in that very same paragraph, asserted her opinion that Race has always mattered and continues to matter, in fact.
In other words, she believes that people of particular racial groups, by virtue of their membership in those racial groups, are less capable of meeting the requirements for admission to the best universities because Sonia Sotomayor believes in this racist view of the world.
And she's saying as much, which is fine.
A lot of people do.
But this racist view is not embedded in the Constitution.
What's embedded in the Constitution is a guarantee that people will be free of this racist perspective.
And she's doing so as an unelected judge, trying to impose her own view of the United States, based on her own subjective perceptions.
Exactly what she's accused in the majority of trying to do.
Now, Justice Thomas wrote a concurring opinion.
Obviously, Justice Sotomayor and Justice Thomas have particular weight in this debate, because both of them, by their own descriptions, are beneficiaries of affirmative action.
Although Clarence Thomas always hated affirmative action, because he believes, and I think correctly, That what it means is that when people in minority racial groups rise to very high levels of accomplishment, there's an assumption that they didn't really get there on their own merit.
Because you can see in all the things we read to you by liberal defenders of these policies that they don't actually believe that people in certain minority groups are capable of that achievement without being boosted by racial discrimination against others.
That really is their belief.
That's why Justice Thomas has always felt it.
Because he knows that's how a lot of people in the country, including white liberals, really think about his accomplishments and the accomplishments of all non-white people.
So that was Sonia Sotomayor defending this position, this policy of racial discrimination, which she said she has been a beneficiary of as a Latina who has gotten into colleges or otherwise gotten positions that she believed she would not have gotten absent this race-based affirmative action.
And here is Justice Thomas refuting the opinion of Justice Jackson, her dissenting opinion.
She also, of course, is an African-American who was just appointed by President Biden last year.
Who also, like Sonia Sotomayor, defended affirmative action.
And here is what Justice Thomas has to say about Justice Jackson's use of statistics showing that there are disparities between certain racial groups and their achievement levels.
Quote, nor do Justice Jackson's statistics regarding a correlation between levels of health, wealth, and well-being on the one hand, and selected racial groups prove anything.
Of course none of these statistics are capable of drawing a causal link between race rather than socioeconomic status or other factors and individual outcomes.
So Justice Jackson just supplies the link herself, the legacy of slavery and the nature of inherited wealth.
This, she claims, locks blacks into a seemingly perpetual inferior caste.
Such a view is irrational, It is an insult to individual achievement and cancerous to young minds seeking to push through barriers rather than consign themselves to permanent victimhood.
If an applicant has less financial means because of generational inheritance or otherwise, then surely a university may take that into account.
Exactly, that's what he's saying.
That if you're someone who grew up very poor, you're likely to have experiences that shape your character and that enable you to bring a different perspective because it actually shapes Who you are as a person, whether you're a poor black person, a poor white person, a poor Latino person, that certainly does shape your lived experiences by definition, unlike just the abstract question of what race you are.
So he says, quote, if an applicant has medical struggles or a family member with medical concerns, the university may consider that too.
What it cannot do is use the applicant's skin color as a heuristic, assuming that because the applicant checks the box for black, he therefore confirms to the university's monolithic and reductionist view of an abstract, average black person.
That is what I hate so much about this mindset, that it reduces people in exactly that way.
He then goes on, quote, Justice Jackson then builds from her faulty premise to call for action, arguing that courts should defer to, quote, experts.
And allow institutions to discriminate on the basis of race.
Make no mistake, her dissent is not a vanguard of the innocent and helpless.
It is instead a call to empower privileged elites who will quote, tell us what is required to level the playing field among castes and classifications that they alone can divine.
Then, after siloing us all into racial castes and pitting those castes against each other, the dissent somehow believes that we will be able, at some undefined point, to quote, march forward together into some utopian vision.
Social movements that invoke these sorts of rallying cries historically have ended up disastrously.
This is why I began with that discussion of what diversity really means.
I do think diversity matters in institutions.
I think it's a value.
I think we all benefit from hearing from people who have different experiences than us.
Race is the worst indicator to use for that, because it tells us nothing about how someone grows up, or very, very little.
And all it does is perpetuate this idea That people of different racial backgrounds are necessarily different from one another, have nothing in common, cannot see the world the same way, that race is a formative factor, the formative factor in determining who we are and how we think.
That is what makes it so offensive.
And what's really important here to realize is even in this vision that ignores class, class ends up being the key factor because of course The kind of students that Harvard and these other elite institutions accept, including in their favorite racial groups, end up being very wealthy.
So it's just a fig leaf for pretending that they're ushering in diversity of thought, and in reality they're just perpetuating the status quo.
Here from the San Francisco Chronicle in March of 2019, you see the headline, How Affirmative Action Helps Rich People.
Quote, according to a 2017 study of 38 elite colleges, now this is not bad, I should note, that is quoting statistics that we have fact-checked.
Quote, according to a 2017 study of 38 elite colleges, more students came from the top 1% of the income scale than from the entire bottom 60%.
At my own institution, the University of Pennsylvania, there were no undergraduate students, that's right, none, from the lowest quintile of American earners.
Quote, there can be no separate college admission system for the wealthy, declared Boston's U.S.
Attorney Andrew Lelling in announcing charges against 50 people on March 12th, but we already have such a system.
Our elite colleges have become playgrounds of the rich, where people come from different ethnicities but mostly the same zip codes.
And that might be the biggest scandal of all.
In a recent lawsuit alleging discrimination against Asian American applicants at Harvard University, for example, the university's own analysis showed that 71% of African American and Latino students at Harvard University come from wealthy backgrounds.
Let me read that again.
In the recent lawsuit, Alleging discrimination against Asian-American applicants at Harvard University, the university's own analysis showed that 71%, 7 out of every 10 of African-American and Latino students at Harvard come from wealthy backgrounds.
Do you think that race-based policy is bringing in a diversity and wealth of different experiences and perspectives?
Of course not.
It's bringing in kids from all the same neighborhoods, from the same zip codes.
His only difference is they look different.
He concludes, the admission preference for black applicants is almost twice as large as the assist for students from families making $60,000 a year or less.
Now, as I indicated, this mentality has seeped into every kind of societal sector.
Back in... I think we have this here.
Back in May of 2021, A court reviewed a provision of President Biden's COVID relief law that provided aid to small businesses that were suffering economically because of the COVID shutdowns and quarantines and lockdowns.
And there was a provision in that relief bill that gave preference to minority owned businesses.
So if you are a white owned business or restaurant and you are On the verge of bankruptcy and you couldn't pay your bills, you had to wait in line.
It was not first come, first serve.
Anybody who could demonstrate that their business was 51% owned by a racial minority, not all racial minorities, just specific ones that were favored, jumped to the front of the line.
And the restaurant that brought suit alleging that this was discriminatory was one owned by a married couple, 50-50.
She was white, he's Latino.
So it was owned only 50% by a Latino person.
Had he owned 51%, instead of 50% of this business, it would have gotten to jump to the front of the line.
Instead, they went to the back of the line.
They were worried that by the time they got to the front of the line, the fund would be exhausted, which is what happened.
And a court of appeals struck down It was racial and gender preferences, so women-owned businesses also got to the front of the line.
And the author of the ruling striking this down as racially discriminatory, just like on the same grounds as the court today struck down the racial discrimination admissions process based on the Equal Protection Clause, was himself a first-generation immigrant to the United States.
And one of the primary arguments he make, and I wrote about it in that article that you see on the screen, Appellate Court Strikes Down Racial and Gender Preferences in Biden's COVID Relief Law.
Was the fact that it produced so many repugnant outcomes about who got to go to the front of the line and who did not.
This is what the judge wrote.
Quote, individuals who trace their ancestry to Pakistan and India qualify for special treatment, but those from Afghanistan, Iraq, and Iran do not.
Those from China, Japan, and Hong Kong all qualify, but those from Tunisia, Libya, and Morocco do not.
Imagine two childhood friends, one Indian, one Afghan.
Both own restaurants, and both have suffered devastating losses during the pandemic.
If both apply to the Restaurant Revitalization Fund, the Indian applicant will be presumptively receive priority consideration over his Afghan friend.
Why?
Because of his ethnic heritage, it is indeed, quote, a sordid business, quoting a Supreme Court case.
To divide, quote, us up by race, citing League of United Latin American Citizens versus Perry.
And the court said, and the government here violates the Constitution.
The attempts to do here violates the Constitution.
That was Judge Thopper.
And as I wrote, he was referencing the fact that under the Small Business Administration regulations that apply to this COVID relief bill, a person is deemed, quote, socially and economically disadvantaged.
This is the phrase for socially and economically disadvantaged if they are, quote, black, Hispanic or Native American.
They are deemed presumptively disadvantaged as Asian Pacific American only if they have origins from Burma, Thailand, Malaysia, Indonesia, Singapore, Brunei, Japan, China, including Hong Kong, Taiwan, Laos, Cambodia, Vietnam, Korea, the Philippines, the U.S.
Trust Territory of the Pacific Islands, the Republic of the Marshall Islands, Federated States of Micronesia, The Commonwealth of the Northern Mariana Islands, Guam, Samoa, Macau, Fiji, Tonga, Kiribati, Tuvalu, or Nauru.
Meanwhile, for a person to qualify as subcontinent Asian Americans, they quote, must have origins from India, Pakistan, Bangladesh, Sri Lanka, Bhutan, the Maldive Islands, or Nepal.
And anybody who was non-white, And not from those groups, was not deemed presumptively disadvantaged, no matter how poor they were.
Such as the restaurant that brought suit, because they went to the back of the line, because the woman only owned 50%, the man who was Latino only 50%, and they didn't qualify.
Based purely on their demographic characteristics.
Which the court, like today, said was unconstitutional.
That's how pervasive this discriminatory mindset has become.
Not only doling out admissions to elite institutions that determine your future based solely on a person's skin and discriminating against students based on their color of their skin, but also government benefits all the time based on this sort of thing.
Now, the perverse incentives that this produces, I think, was best illustrated by the history of one of the senators who today vehemently condemned the Supreme Court's ruling as racist and white supremacist and the like, Elizabeth Warren, the senator from Massachusetts of the Democratic Party.
In a previous incarnation, Elizabeth Warren was heralded as the, quote, first woman of color ever to be hired by Harvard Law School.
Here's a political article in 2012 written by Maggie Haberman, who is now a New York Times reporter, but was then with the Politico.
And this is what it says, quote, Elizabeth Warren has pushed back hard on questions about a Harvard Crimson piece in 1996 that described her as Native American, saying she had no idea the law school, no idea the school where she taught law was billing her that way, and saying it never came up during her hiring a year earlier, which others have backed up.
A 1997 Fordham Law Review piece described her as Harvard Law School's, quote, first woman of color.
Based according to the notes at the bottom of the story on a, quote, television interview with Michael Krummer, news director, Harvard Law.
The mention was in the middle of a lengthy and heavily annotated Fordham piece on diversity and affirmative action in women.
The title of the piece by Laura Padilla was, quote, intersectionality and positionality, situating women of color in the affirmative action dialogue.
Quote, there are few women of color who hold important positions in the academy, Fortune 500 companies, or other prominent fields in industry, the piece said.
This is not inconsequential.
Diversifying these arenas, in part by adding qualified women of color to their ranks, remains important for many reasons.
For one, there are scant women of color as role models.
In my three years at Stanford Law School, there were no professors who were women of color.
Harvard Law School hired its first woman of color, Elizabeth Warren, in 1995.
We have so many cases now of academics and other people getting caught lying about their minority status, not lying and saying they're white, which you would expect a lot of people to doing if that converted an advantage, but lying and claiming that they were a member of a minority group when they actually weren't at all.
Because within these institutions, that confers benefits.
And Elizabeth Warren is probably the best case for that.
Now, leave the question of admissions to the side, because even if you remove race, there are still all sorts of factors in the admissions process that undercut the idea of meritocracy.
If your father, for example, went to that school, it gives you an advantage.
If your father writes a $20 million check to that institution, you're almost certain to get in.
Just as basic capitalism, the richer you are, the more likely you are to have advantages.
If your father gives $20 million to the school to help increase this endowment, they're going to let their kid in.
So there are a lot of unequal aspects to the college admissions process, even if you remove this racist one.
The difference, though, of course, is that the Constitution actually bans racial discrimination very directly.
But the more important point is not that this is not confined to the racial admissions process.
This is now the standard way of judging the world.
And if it were the case that membership in a racial group was a reliable indicator for how people think and for their experiences, I would be much more inclined to be receptive to the university's arguments.
It's precisely because it doesn't, because it's offensive to assume that.
And that there are so many other Factors that determine who we are and how we think and what perspective we bring beyond what race we are, that makes what the universities are doing and what every institution is doing that uses race as a discriminatory factor explicitly so toxic, so destructive, so racist, and so unconstitutional.
And I think it's long past time that the U.S.
Supreme Court, even in its imperfect way, that left open this little loophole, at least finally upheld the principle that racial discrimination is wrong no matter who does it and no matter against whom it is being invoked.
So that concludes our show for this evening.
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