I don't believe the Court punted. That term implies that they made a mistake in agreeing to hear Fisher in the first place, and I find that claim incredible. Despite the fact that they have already agreed to hear Schuette v. Coalition to Defend Affirmative Action next year, I think the fate of affirmative action is sealed and will not now change very much.
The issue revolves around the 14th Amendment, also known as the equal protection clause, which states in part
The original jurisprudence on affirmative action dates from the 1978 Univ. of California v. Bakke decision. This ruling stated two things: 1) that "diversity" is a legitimate educational goal that universities have a right to pursue. And 2) that an explicit, racial quota system--i.e., reserving a set percentage of seats for Blacks and Hispanics--violates the equal protection clause. Instead, universities are required to use "holistic" admissions standards in which race can be only one of many criteria. Your attitude toward Bakke depends on which of these two points you find most offensive.
If, like me, you consider the "diversity" concept to be mostly horsefeathers, then you regard Bakke as wrongly supporting affirmative action. This is clearly the opinion of Justices Alito and Thomas, who wrote concurring opinions to Fisher saying that affirmative action should be ruled unconstitutional.
Certainly I see value in diversity. I work today on a very diverse campus--though I would rather use the word cosmopolitan. Such an environment is much more pleasant and interesting than a small campus in a Midwestern farm town. Students who value an urban, multicultural atmosphere will find many colleges to choose from in this country. There's a reason why New York University is among the most sought after institutions. But there is no value here that comes close to trumping the equal protection clause.
At the opposite extreme, I recall the Socialist Workers Party (SWP) as being adamantly opposed to the Bakke decision. They objected most to point #2, i.e., they strongly supported quotas in university admissions. This is totally consistent with the Trotskyist (Marxist) view that human beings are interchangeable. Anybody can be an A student at Harvard if only they are given the chance. And the only reason Black people don't have the chance is because of racism. By this logic, any discrepancy in equal outcomes for all races is due entirely to racist discrimination and can be easily corrected by quotas.
Of course it's not true. The bottom line is that Trotskyists don't believe in the equal protection clause at all. They believe that university slots should be allocated politically, rather than by any merit. Part of the problem, of course, is that "merit" is a very slippery term, and includes not only academic talent, but also athletic ability, relationships to alumni, religious affiliation, etc. Why shouldn't it also include race? That is precisely the issue that the court will address when it takes up the Schuette case next year.
As much as a radical like me would find it satisfying if the court had simply thrown out affirmative action in its entirety, I have to respect the decision of the Roberts court in Fisher. The court is deciding cases on the narrowest possible grounds, which is indeed a very conservative procedure. Affirmative action has been the law of the land for over fifty years now, and it can't all of a sudden be found unconstitutional.
All constitutional rights are limited. The right to free speech does not extend to yelling "fire" in a theatre, or to threatening violence. Freedom of religion does not permit human sacrifice, and the right to bear arms is tightly circumscribed. Likewise, the equal protection clause won't apply everywhere. Governments have long made distinctions between men and women, certain religious groups have been exempted from the draft, and some affirmative action apparently is constitutional. But any violation of the equal protection clause requires strict scrutiny, which is exactly what the court has ordered.
In practice, very little affirmative action will survive such scrutiny. It will simply fade away, despite the strenuous efforts of the few remaining ideologues who support it.
It is interesting that most relevant jurisprudence on this issue has involved academia. This is probably because people see colleges as a gatekeeper. Get admitted to Harvard, so the theory goes, and you are pretty much guaranteed a life among the 1%. This is a very Trotskyist point of view--admission to Harvard is indeed very much a matter of luck, and affirmative action has simply altered the odds somewhat.
But the role of academia as gatekeeper has always been exaggerated. Harvard has prestige because only a thousand freshmen are admitted annually--a tightly rationed status symbol. Insofar as the status symbol is allocated for reasons that have nothing to do with status, it devalues the brand. Athletic talent confers status (which is why good schools offer those scholarships), but race does not.
Further, technology is allowing education to be much more widely distributed, devaluing the brand yet more. Bright students will get an excellent education without ever setting foot in Harvard. Prestigious companies, such as Google, have now eliminated the college degree as a filter for employment because it is not predictive of performance. So colleges--even Harvard--will lose prestige and power, and affirmative action becomes less and less important as a result.
I actually wouldn't object to affirmative action if it were limited to African-Americans. That group, uniquely, has had a particularly sorry history on this continent, and modest measures subject to strict scrutiny to improve their lot seem warranted. They constitute only 12% of the American population, so the impact spread among the remaining 88% would be minimal.
Unfortunately, affirmative action has been extended to Hispanics, who are just another ethnic group no different than the rest of us, and to women, who are completely undeserving. The result is that 65% of the population is part of a "protected class," which really means that the remaining 35% (white males) are screwed. So affirmative action as it actually exists is really just legalized discrimination against white males and Asians of both genders.
As the academy shrinks, affirmative action will shrink with it. Good riddance.
Note: I wish all friends and comrades a Very Happy 237th Birthday! Have a great Fourth Of July!
Further Reading:
The issue revolves around the 14th Amendment, also known as the equal protection clause, which states in part
No State shall make or enforce any law which shall abridge the privileges or immunities of 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 laws.It is ironic that this clause, originally written to guarantee Black civil rights, is now used to protect the rights of whites and Asians. Irony notwithstanding, the principle of equality under the law is too important a concept to sacrifice for frivolous reasons. Clearly, treating Blacks as second class citizens is and should be unconstitutional. Likewise, discriminating against whites--or more accurately, against Asians--is comparably unacceptable.
The original jurisprudence on affirmative action dates from the 1978 Univ. of California v. Bakke decision. This ruling stated two things: 1) that "diversity" is a legitimate educational goal that universities have a right to pursue. And 2) that an explicit, racial quota system--i.e., reserving a set percentage of seats for Blacks and Hispanics--violates the equal protection clause. Instead, universities are required to use "holistic" admissions standards in which race can be only one of many criteria. Your attitude toward Bakke depends on which of these two points you find most offensive.
If, like me, you consider the "diversity" concept to be mostly horsefeathers, then you regard Bakke as wrongly supporting affirmative action. This is clearly the opinion of Justices Alito and Thomas, who wrote concurring opinions to Fisher saying that affirmative action should be ruled unconstitutional.
Certainly I see value in diversity. I work today on a very diverse campus--though I would rather use the word cosmopolitan. Such an environment is much more pleasant and interesting than a small campus in a Midwestern farm town. Students who value an urban, multicultural atmosphere will find many colleges to choose from in this country. There's a reason why New York University is among the most sought after institutions. But there is no value here that comes close to trumping the equal protection clause.
At the opposite extreme, I recall the Socialist Workers Party (SWP) as being adamantly opposed to the Bakke decision. They objected most to point #2, i.e., they strongly supported quotas in university admissions. This is totally consistent with the Trotskyist (Marxist) view that human beings are interchangeable. Anybody can be an A student at Harvard if only they are given the chance. And the only reason Black people don't have the chance is because of racism. By this logic, any discrepancy in equal outcomes for all races is due entirely to racist discrimination and can be easily corrected by quotas.
Of course it's not true. The bottom line is that Trotskyists don't believe in the equal protection clause at all. They believe that university slots should be allocated politically, rather than by any merit. Part of the problem, of course, is that "merit" is a very slippery term, and includes not only academic talent, but also athletic ability, relationships to alumni, religious affiliation, etc. Why shouldn't it also include race? That is precisely the issue that the court will address when it takes up the Schuette case next year.
As much as a radical like me would find it satisfying if the court had simply thrown out affirmative action in its entirety, I have to respect the decision of the Roberts court in Fisher. The court is deciding cases on the narrowest possible grounds, which is indeed a very conservative procedure. Affirmative action has been the law of the land for over fifty years now, and it can't all of a sudden be found unconstitutional.
All constitutional rights are limited. The right to free speech does not extend to yelling "fire" in a theatre, or to threatening violence. Freedom of religion does not permit human sacrifice, and the right to bear arms is tightly circumscribed. Likewise, the equal protection clause won't apply everywhere. Governments have long made distinctions between men and women, certain religious groups have been exempted from the draft, and some affirmative action apparently is constitutional. But any violation of the equal protection clause requires strict scrutiny, which is exactly what the court has ordered.
In practice, very little affirmative action will survive such scrutiny. It will simply fade away, despite the strenuous efforts of the few remaining ideologues who support it.
It is interesting that most relevant jurisprudence on this issue has involved academia. This is probably because people see colleges as a gatekeeper. Get admitted to Harvard, so the theory goes, and you are pretty much guaranteed a life among the 1%. This is a very Trotskyist point of view--admission to Harvard is indeed very much a matter of luck, and affirmative action has simply altered the odds somewhat.
But the role of academia as gatekeeper has always been exaggerated. Harvard has prestige because only a thousand freshmen are admitted annually--a tightly rationed status symbol. Insofar as the status symbol is allocated for reasons that have nothing to do with status, it devalues the brand. Athletic talent confers status (which is why good schools offer those scholarships), but race does not.
Further, technology is allowing education to be much more widely distributed, devaluing the brand yet more. Bright students will get an excellent education without ever setting foot in Harvard. Prestigious companies, such as Google, have now eliminated the college degree as a filter for employment because it is not predictive of performance. So colleges--even Harvard--will lose prestige and power, and affirmative action becomes less and less important as a result.
I actually wouldn't object to affirmative action if it were limited to African-Americans. That group, uniquely, has had a particularly sorry history on this continent, and modest measures subject to strict scrutiny to improve their lot seem warranted. They constitute only 12% of the American population, so the impact spread among the remaining 88% would be minimal.
Unfortunately, affirmative action has been extended to Hispanics, who are just another ethnic group no different than the rest of us, and to women, who are completely undeserving. The result is that 65% of the population is part of a "protected class," which really means that the remaining 35% (white males) are screwed. So affirmative action as it actually exists is really just legalized discrimination against white males and Asians of both genders.
As the academy shrinks, affirmative action will shrink with it. Good riddance.
Note: I wish all friends and comrades a Very Happy 237th Birthday! Have a great Fourth Of July!
Further Reading:
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