The Fall of Affirmative Action (Not Quite)

I wrote about the Jimmy Kimmel (WTAF) suspension at my Substack. A very woke/triggering affair.

Justin Driver's first book was a long-form work about Supreme Court cases involving schools. This book is part of a series intended to be quick reading. 

It supports affirmative action, but generally takes the Supreme Court (to be specific) overruling race-based affirmative action as we know it as a given. It argues (1) that it is counterproductive even granting the majority's premises, (2) there are (quite imperfect) means left to fulfill the ultimate goals (e.g., targeting certain residential areas). 

Prof. Scalia (as he then was) wrote an anti-affirmative article, short and not so sweet, back in 1979 entitled The Disease as Cure: 'In Order to Get beyond Racism, We Must First Take Account of Race.' Let's say he was not a fan of Justice Blackmun's Bakke argument, later reaffirmed by Sotomayor and Jackson.  The familiar arguments are there.

My father came to this country when he was a teenager. Not only had he never profited from the sweat of any black man's brow, I don't think he had ever seen a black man. 

This could have been said (if he considered such things; I never recall him talking politics or such ideological sentiments) by my Italian father around that time. His father was an Italian immigrant. It would be a lie. 

The article doesn't even consistently demand the premise. Scalia later acknowledges that such white ethnics might have "been the beneficiaries of discrimination against blacks." It would just be comparing a "mountain with a molehill" to put it on par with slavery. 

Sotomayor and Jackson use their dissents in the 2023 opinion to summarize just how much racism is still a thing almost 45 years after he wrote that. Shades of Shelby v. Holder, but before Reagan was elected president, he sold a bill of goods that racism was really just a shadow of a problem.

Scalia argued he was fine with programs not based on race, even if most or all beneficiaries were black. He supported the needs of black people "because they have (many of them) special needs, and they are (all of them) my countrymen and (as I believe) my brothers."  

A nice sentiment, but dubious if we ignore specific needs and problems that are not general. They are racial, and the solutions will be racial too. Also, aside from the regular support of these people of racists (most recently, Trump), there is regularly no serious attempt to do the hard work to stop racism and its effects. 

It is hard to take claims of good faith. They are not akin to Justice Douglas, who opposed race-based affirmative action but was willing to require much heavy lifting to address racism in other ways. Some minority of affirmative action opponents (many of whom still vote for Trump) might be more willing than others. But in the end, they are wanting. 

Education is fundamental to republican government. The right to education is protected in state constitutions. It is an appropriate concern of the federal government. It should be deemed a fundamental right. Good education requires a lot of work by everyone involved. 

The book also argues that liberals sometimes are too wary about acknowledging that affirmative action is imperfect. The claim has some bite but is exaggerated. 

For instance, repeatedly in the dissents, it is emphasized that race is only a factor in affirmative action programs. They are carefully structured. Rightly so.

Conservatives, including Justice Thomas, argue that affirmative action leads people to assume that all blacks are unqualified. The author flags the concern while noting it is at least overblown. I firmly agree. 

The assumption exists that there is no affirmative action. Perhaps, the ultimate problem here is racism. A black lawyer passes the bar after an impressive academic record at Harvard. Why should a person doubt their qualifications? 

I think that a range of techniques should be used to promote both diversity and racial equality. These techniques require much work. The goals, however, are valid. DEI is a good thing. Diversity, equity, and inclusion are good things.

Republicans agree when it suits. The "praying coach" case reaffirmed the importance of a "free and diverse Republic." Religion can specifically benefit in promoting those ends. 

A specific enumerated concern about the establishment of religion does not change that. Ideally, the Supreme Court would more seriously respect how free exercise and the establishment concerns should be balanced. That's another fight.  

The Equal Protection Clause, some comments by Justice Scalia notwithstanding, does not reference "race." Sotomayor is correct to highlight the text. Equal protection sometimes requires considering individual characteristics. 

Race included. We must be careful. Race specifically is a concern of the Fourteenth Amendment. Still, the Equal Protection Clause is more open-ended, including over 150 years of using race to promote racial equality.  

The "end" of affirmative action -- even the majority opinion leaves open military academies, among other things -- has somewhat been exaggerated. The Supreme Court has overall just provided a misguided approach, often more lip service than real, in fighting the use of race.

Anyway, Justin Driver's book is well recommended. I have not fully covered many of the subjects covered. Check it out.