Tuesday, February 21, 2012

We can assume affirmative action is toast. The question: What will this High Court take with it?


That was 2003. The days of "moderation" are over.

The Supreme Court said Tuesday it will reconsider whether affirmative action may be considered when public universities choose which students to admit, revisiting a 2003 decision that allows race as a factor in admission decisions.

The court will hear a white student's claims that the University of Texas's race-conscious admission policy cost her a spot in the freshman class. The justices will hear the case in the term that begins in October, making it likely that affirmative action will be an issue in the fall elections.

by Ken

It takes four Supreme Court justices, you'll recall, to accept a case for review, and if anyone can think of any reason why four justices would have agreed to take this case other than to throw dirt on the coffin of affirmative action, I'd love to hear it. As Robert Barnes explains
Opponents of affirmative action hope that the current court, more conservative than the one that made the 2003 decision, will rule out the use of race.

Justice Sandra Day O'Connor, who wrote the 5 to 4 decision in Grutter v. Bollinger , was replaced by Justice Samuel A. Alito Jr., who in past decisions has opposed the use of race in education decisions. And one of the court's liberals, Justice Elena Kagan, has recused herself from the Texas case, presumably because of her previous job as President Obama's solicitor general.

In the 2003 decision, O'Connor said the University of Michigan's law school could consider race as part of a holistic evaluation of an applicant. O'Connor said government had a compelling interest in diversity, including seeking a “critical mass” of minority students.

No sir, our Sammy -- the man who thinks he did it all by his white-male self, pulled himself up by his heroic bootstraps -- had no interest in playing the role of Justice Sandy, preferring something more along the lines of the White-Meat Clarence Thomas, leaving Justice Sandy's frequent role as swing vote, by default, to the singularly ill-equipped "Slow Anthony" Kennedy, who's made a pretty complete botch of it. Not to mention that now the man running the show isn't that old crackpot "Wild Bill" Rehnquist but the incomparable "Smirkin' John" Roberts, who likes to dismantle the Constitution quietly but quickly and efficiently.

No, I think we can all guess pretty accurately why the Court has agreed to revisit the 2003 decision. Probably we can expect a ruling that will at first seem less sweeping than we expected, but when looked at more closely turns out to be not only more sweeping but sweeping in ways we hadn't anticipated. This Court, remember, doesn't sit around waiting for cases that allow it to do its constitutional rewrite; it goes out and shops for what it's looking for to accomplish what it's got on its mind. (The sly variation, of course, is to do some of the job in this ruling while inserting in it the groundwork for the decision it's really angling toward.)

There's a certain amount of irony in the fact that this latest blow for the bastion of white-male privilege will be struck on behalf of a white female.
Texas has a unique system. It provides admission for those in the top 10 percent of their Texas high schools. Abigail Noel Fisher of Sugar Land did not make that cut and was put into a pool of applicants in which race is considered along with other factors, such as community service, leadership qualities, test scores and work experience.

Fisher enrolled instead at Louisiana State University and is on track to graduate this spring.

Her lawyer, Bert Rein, has argued that the Texas system goes beyond what the court said was allowed because UT's race-neutral policy for the top 10 percent already brings in percentages of minority students “far beyond” the numbers at issue in Grutter.

The students automatically accepted under that program account for the vast majority of UT freshman classes, and Rein said 30 percent of the enrolling students are from underrepresented minorities.

But UT officials do not feel that is enough for a state in which -- in the near future -- there will be no majority race. In evaluating applicants who did not make the top 10 percent, the school decided after the Grutter decision to consider race along with the other factors.

A panel of the U.S. Court of Appeals for the 5th Circuit upheld the Texas plan, but a number of high-profile conservative judges from the circuit loudly objected and urged the high court to consider the case.

I wouldn't be surprised to learn that the irony was staged, or at least savored by the justices who have sworn undying fealty to the cause of white male supremacy. Just watch and see who the beneficiaries will be.

As we will learn in the ruling in this case, if there was ever any justification for affirmative action (which is likely to prove to have been dubious), there is certainly none now, when justice and fairness are equitably distributed to all Americans, and nobody needs any special protection except the one truly persecuted group: Christian white males. Oh yes, and of course the corporations under which they huddle for safety from those nonwhite and nonmale meanies who are trying to steal the very food out of their mouths. And as we know, corporations are people too.


My guess it that along with affirmative action will go many other things that have been unconstitutionally kept out of the grasp of the white male minority. How about a quick overturn of Brown v. Board of Education? With an eloquent new ruling telling us that not only is "separate but equal" constitutionally hunky-dory, but really and truly, "equalish" is quite good enough.

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At 6:05 PM, Anonymous Anonymous said...

I wonder who will sue Yale when yet another Bush gets in and takes their spot.

At 2:36 PM, Blogger KenInNY said...

Good one, Anon!

I'm not sure it matters who sues in a case like that. That's a lawsuit you can guess wouldn't be going anywhere, least of all to the Supreme Court!



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