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The Coming End of Affirmative Action
Townhall.com ^ | April 26, 2014 | Paul Greenberg

Posted on 04/26/2014 7:09:08 AM PDT by Kaslin

Amidst all the opinions out of the nation's highest court on Tuesday -- majority and minority, concurring in part and dissenting in part, or just too vague to classify -- was there any clear message? Yes. Definitely. But you had to peer through all the legal haze, an admix of angry rhetoric and discreet evasions, in order to divine where the Supreme Court of the United States is headed on the always simmering issue of race-based admissions to the country's colleges and universities. But it's finally headed in the right direction, however many zigs and zags the learned justices may have taken along the way.

If you listen carefully to the general drift of all these different decisions, that sound you can hear in the distance, maybe only the far distance, is the long awaited death knell for racial preferences in higher education. Yes, time is running out for all those racial quotas -- for that is what has always lurked behind the euphemism Affirmative Action, which can have decidedly negative impact on those students who don't belong to the favored race, ethnicity, class or whatever bias you prefer.

. .

If the essence of law is not logic but experience, to borrow an observation from the ever-observant Oliver Wendell Holmes, then this assemblage of legal opinions pro and con and in-between indicates that experience is slowly catching up to logic where racial preferences are concerned. And ending them.

. .

From its beginning, what is called affirmative action has had a paradox at its center: Any preference given applicants who belong to the preferred group amounts to discrimination against those who don't. That's always been the essential injustice of Jim Crow systems no matter what elevated names they are assigned -- whether "separate but equal" or "affirmative action" -- and no matter which Americans they favor, and so necessarily disfavor others. There's no getting around that essential truth no matter how hard judges like Sonia Sotomayor or Ruth Bader Ginsburg try.

. .

Justices Sotomayor and Ginsburg are scarcely the first to deck out an essential injustice in the language of high principle. It's almost a tradition in American jurisprudence. See the works of Roger B. Taney (he of the infamous Dred Scott decision) or Henry B. Brown, author of Plessy v. Ferguson almost half a century later, from which all kinds of racial segregation flowed. Happily, there's always a great if lone dissenter like John Marshall Harlan who sees right through their game, or just a waffler like Anthony M. Kennedy who blows the whistle on it, as he did in this week's majority opinion.

. .

Yes, there are instances where some forms of racial discrimination may be justified on a temporary basis in order to break up a whole, greater system of racial discrimination long embedded in law, custom and popular passion. Think of the crosstown busing that was necessary -- for a while -- to end racial segregation in the nation's schools and so further liberty and justice for all in this one nation all too divisible.

Unfortunately, the legal expedients we're told are only temporary have a way of becoming permanent, dragging on for years, even decades, as busing did. Only now may such arbitrary measures be fading, though not till after they ushered in an era of resegregated school systems in city after city. Affirmative action, too, has tended to become a permanent institution, with its own overstaffed bureaucracy and vested interests, in all too many of the country's institutions of "higher" learning, which wind up practicing a low form of racial discrimination.

That's why the most hopeful comment in this miscellany of opinions the Supreme Court handed down Tuesday came from one of the only two justices on the court who would prolong affirmative action/racial quotas in American college admissions. The comment was embedded deep in Justice Sotomayor's outburst disguised as an impartial opinion, and you might have had to listen carefully to the summary of it she read from the bench to discern the ray of hope deep in its glowering text. It came when she accused the court of "permitting the majority to use its numerical advantage to change the rules mid-contest and forever stack the deck against racial minorities in Michigan."

Michigan is where the voting public dealt racial preferences a major blow by outlawing them in that state's public universities. As if the voters had realized that the simplest, most direct way to end racial discrimination in college admissions is to end racial discrimination in college admissions. How about that?

But that's just the kind of simple justice Madam Justice Sotomayor deplored in her opinion -- except, except for one brief comment that implied some hope for justice in the future. Did you catch it? It came when she was berating the court for changing the rules of the game "mid-contest." Hmm. So if the debate over affirmative action has reached its midpoint, that means this pernicious practice must have had a beginning and, yes, will someday have an end. And someday all students applying for admission to a state university will be judged without regard to their race or other irrelevancies. What a glorious day that will be, and this mixed bag of decisions out of the court Tuesday indicates that day is coming, however slowly.

. .

Yes, the college admission process can be rigged to benefit your favorite minorities, but only at the cost of penalizing others. The question is Cui bono? Who benefits? (This being a legal discussion, it would not be complete without a Latin phrase or two.) Black and Hispanic applicants may enjoy an advantage under affirmative action, but Jews and Asian-Americans need not apply. Indeed, one of the most evident results of affirmative action is to limit their numbers at the country's more prestigious universities.

Just why justices like Sonia Sotomayor should think it awful to "stack the deck" against certain minorities but not against others may be one of those mysteries best left to her own law and conscience, for we can't think of any ready explanation for her selective indignation besides the old, obvious one: blind, invincible prejudice.

The wheels of justice, they say, grind slow but exceeding fine. Sometimes so fine that justice is hard to discern. But the day of reckoning for affirmative action is coming, however slowly and contentiously. And it'll be a great day when it finally


TOPICS: Culture/Society; Editorial; Government
KEYWORDS: affirmativeaction; annarbor; judicialactivism; michigan; quotas; scotus; soniasotomayor
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1 posted on 04/26/2014 7:09:08 AM PDT by Kaslin
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To: Kaslin

jim crow = government enforced racism.
affirmative action = government mandated racism.


2 posted on 04/26/2014 7:12:59 AM PDT by cuban leaf
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To: Kaslin

Sonia Sotomayor . the poster babe for non-meritorious promotion

If you can’t compete, you don’t belong


3 posted on 04/26/2014 7:13:28 AM PDT by A_Former_Democrat (Hey 2008, we told you so)
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To: A_Former_Democrat

“I would hope that a wise Latina woman with the richness
of her experiences would more often than not reach a better
conclusion [as a judge] than a white male who hasn’t lived that life.”

— Judge Sonia Sotomayor, in her Judge Mario G. Olmos Law and Cultural Diversity Lecture at the University of California (Berkeley) School of Law in 2001


4 posted on 04/26/2014 7:26:16 AM PDT by Baynative (Got bulbs? Check my profile page.)
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To: Kaslin

They may put an end to affirmative action, per se, but the minorities will STILL be found constantly screaming for special treatment.

And, more than likely, getting it.


5 posted on 04/26/2014 7:27:38 AM PDT by Jack Hammer
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To: Kaslin

Affirmative Action is a crutch you’d rather not have to depend on in the first place. So why be bothered with it any more than you have to?


6 posted on 04/26/2014 7:30:23 AM PDT by equaviator (There's nothing like the universe to bring you down to earth.)
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To: A_Former_Democrat

She’s a mental midget masquerading as a judicial intellect of the first tier. She was put there because she incorrectly thinks a “wise latina” is better fitted to judge constitutional issues over a just plain American.

She was put there because this government is bound and determined to devolve this country into a 3rd world shithole.


7 posted on 04/26/2014 7:30:27 AM PDT by Gaffer (Comprehensive Immigration Reform is just another name for Comprehensive Capitulation)
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To: Kaslin
Yes, the college admission process can be rigged to benefit your favorite minorities, but only at the cost of penalizing others. The question is Cui bono? Who benefits? (This being a legal discussion, it would not be complete without a Latin phrase or two.) Black and Hispanic applicants may enjoy an advantage under affirmative action, but Jews and Asian-Americans need not apply. Indeed, one of the most evident results of affirmative action is to limit their numbers at the country's more prestigious universities.

Just why justices like Sonia Sotomayor should think it awful to "stack the deck" against certain minorities but not against others may be one of those mysteries best left to her own law and conscience, for we can't think of any ready explanation for her selective indignation besides the old, obvious one: blind, invincible prejudice.

Sotomayor is Bull Conner standing with his dogs in the street... It's not her place to decide winners and losers... she's racist to the bone.

8 posted on 04/26/2014 7:30:32 AM PDT by GOPJ (Democrats are waging war on white middle class men...)
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To: Kaslin

Gosh, even a wise latina didn’t see this coming.


9 posted on 04/26/2014 7:34:19 AM PDT by andyk (I have sworn...eternal hostility against every form of tyranny over the mind of man.)
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To: andyk

Obviously, she isn’t that wise


10 posted on 04/26/2014 7:39:31 AM PDT by Kaslin (He needed the ignorant to reelect him, and he got them. Now we all have to pay the consequenses)
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To: Kaslin

Was this another 5-4? Or 6-2? (One Obama appointee had to recuse out, right?)

I’ve only heard of Ginsberg and Sortofminor protesting.


11 posted on 04/26/2014 7:41:34 AM PDT by Robert A. Cook, PE (I can only donate monthly, but socialists' ABBCNNBCBS continue to lie every day!)
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To: Jack Hammer

I don’t see any evidence of this. Selective public and private university admissions departments practice affirmative action avidly and are working every day to expand it as much as possible. There are a grand total of three elite colleges in the country — Berkeley, UCLA and Michigan Ann Arbor — that by law can’t openly practice affirmative action. Those schools, of course, still want to do so, and have created a matrix of “disadvantaged” admission preference criteria that are designed to exclude Asians and whites from getting those seats.

California will restore affirmative action in 2016, too. Asian Democrats in the legislature blocked the first move, but the advocates will get the initiative signatures and in a Presidential November it is hard to see it failing — starts out with 35% “Yes” from African American and Hispanic voters and only needs to get 20% of the white and Asian vote on top of that; not a hard thing to do.


12 posted on 04/26/2014 7:41:58 AM PDT by only1percent
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To: Kaslin

Gravy train drying up?


13 posted on 04/26/2014 7:44:22 AM PDT by Liberty Valance (Keep a simple manner for a happy life :o)
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To: Liberty Valance

About time


14 posted on 04/26/2014 7:46:14 AM PDT by Kaslin (He needed the ignorant to reelect him, and he got them. Now we all have to pay the consequenses)
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To: A_Former_Democrat

I can’t even stand to look at Sotomayor. Her hair always looks like she hasn’t washed it for 3 weeks. It always looks so oily and unkempt.


15 posted on 04/26/2014 7:46:44 AM PDT by ladyjane
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To: Kaslin; All

The accusation that someone is a “racist” is all that the Democrats and the Democrat’s Left Stream Media need today for control a large population of people who dare to think and/or speak the same ideas as the accused “racist.”

Thus, the power of the word “racist” is valid only as long as no facts are required by the targeted population to substantiate the accusation by those who do the accusing.

If, someday, the accused is considered “innocent until proven guilty” by the facts, then the power of false accusatory words such as “racists,” “domestic terrorists” and other mind-control words will be relegated to the low level used by the school yard bullies who tried to manipulate all of us back in the day.

IOW, we, OURSELVES, allow ourselves to be manipulated because we have forgotten the words of wisdom from our early childhoods: “Sticks and stones may break my bones, but words will never hurt me! Nanny, Nanny, Boo-Boo!”

Wake up America! The Civil War and the Civil Rights Movement have long since been Won and Done!

Time to grow up America, reject the PC Word Police, mind-control, school-yard bullies of the Left!

If “We, the People,” stand for FREEDOM of speech, then insist that ALL, (especially the manipulators on The Left), listen as well as they speak!

It is time - - - time for a change.


16 posted on 04/26/2014 7:46:44 AM PDT by Graewoulf (Democrats' Obamacare Socialist Health Insur. Tax violates U.S. Constitution AND Anti-Trust Law.)
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To: Robert A. Cook, PE

It was a 6-2 ruling. Elena Kagan recused herself.

Ginsburg and Sotomayor were the 2 dissenters.

Kennedy, Roberts, Alito, Scalia, Thomas, and normally liberal Breyer were the six in the majority on this one.


17 posted on 04/26/2014 7:47:02 AM PDT by Dilbert San Diego (Im)
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To: Kaslin

“Yes, there are instances where some forms of racial discrimination may be justified on a temporary basis in order to break up a whole, greater system of racial discrimination long embedded in law, custom and popular passion.”

Um, NO! The only consistent and constitutional standard is a clear one of equal treatment for all regardless of race. Once you open the door, even a “temporary” one, it then becomes a subjective, ever moving non-standard based on the whims of judges.

Additionally, the government still has minority- and women-owned business preferences as far as I know. Using the author’s own sorry rationalization for discrimination, I’m sure those “temporary” preferences were justified to resolve some perceived inequality. Yet, when will that equality be reached and by what standard?

Government has absolutely no business picking winners or losers based on race or sex and is constitutionally prohibited from doing so in spite of what some black robed fairness arbitrators claim. I don’t care if Sandra Day O’Connor, Sonia Sotomayor, and all the other legislators in black robes, aka liberal justices, meant well. They simply substituted their own feelings for the supreme law of the land and gave their stamp of approval to institutionalized discrimination by the government itself!


18 posted on 04/26/2014 7:48:08 AM PDT by CitizenUSA (We can't have an American people that violate the law and then just walk away from it!)
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To: Kaslin

Interesting how the article talks about busing having been needed “for a time” to remedy past discrimination.

In many places, when busing was put in place, many whites either moved out, or put their children in other schools. So the number of whites needed to make integration work became less and less each school year. Eventually, we saw black students being bused across town to majority black schools. Because there weren’t enough white students left to provide for meaningful integration.

Of course, busing had nothing to do with the quality of education received at the end of the bus ride. That’s a whole other subject.


19 posted on 04/26/2014 7:49:49 AM PDT by Dilbert San Diego (Im)
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To: Gaffer

She was nominated by Obama to be on the Supreme Court. She is his idea of a legal intellect. I wonder if she would even have been on the radar if she weren’t of Puerto Rican descent.


20 posted on 04/26/2014 7:50:55 AM PDT by Dilbert San Diego (Im)
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