> They are striking this down for purely political reasons.
On its face affirmative action is pretty blatantly a violation of the 14th amendment:
Which to a trivial reading would come out as 'All persons [black, white, rainbow] shall have equal rights to attend [state funded school], and as such a right to a fair and impartial admissions process'.
Affirmative action adds the clause: "except those whose skin color we do not like today, those shall have to score higher on tests. Those whose skin color we do like today, those shall not have to score as high. Those whose skin color we do not care about can score the same as before."
No, it isn't. From a strict textual reading, the 14th says
> 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.
Admittance to a school is not a deprivation of life, liberty, or property. Nor is this "equal protection of the laws".
Where in the 14th does it say anything about school attendance? When did school attendance become a right? Which amendment does that come from?
Seems like a pretty liberal reading of the 14th to come to the conclusion that prestigious school attendance is somehow a right for white people.
Oh, and this ruling also said that "private schools are allow to discriminate on race if they so choose, this only strikes down the federal law tailored to roll back institutional racism."
But hey, if you want to make the argument that higher education should be a right funded by the public I probably could get behind that. I just don't think there's constitutional or historical backing for that conclusion.
>Where in the 14th does it say anything about school attendance? When did school attendance become a right? Which amendment does that come from?
Brown v. Board of Ed, to start, seems to pretty clearly dictate that public schools may not discriminate on the basis of race because it is a violation of the 14th amendment. What is affirmative action if not a discrimination based on the color of one's skin?
> When did school attendance become a right?
I don't really feel like in 2023 I should have to be arguing that the right to attend a public school shouldn't be conditioned on a pupil's race or ethnicity.
> public schools may not discriminate on the basis of race
Harvard is NOT a public school! It is a private institution which receives public funds. Huge difference but I guess that's not something you want to consider.
Nobody has the right to attend Harvard. They must discriminate based on something. (see: their legacy admission system which accounts for half of all their admissions. Which is fundamentally racist because, guess what color of skin harvard legacy admissions predominantly have?)
> I don't really feel like in 2023 I should have to be arguing that the right to attend a public school shouldn't be conditioned on a pupil's race or ethnicity.
Again, Harvard is NOT a public school. Affirmative action was conditions for receiving public funds. But if you are really mad at harvard for not letting in more deserving students maybe redirect that hate towards the legacy admissions which almost certainly pushed out well deserving students.
> Harvard is NOT a public school! It is a private institution which receives public funds. Huge difference but I guess that's not something you want to consider.
That’s okay, because CJ Roberts did consider it.
> Title VI provides that "[n]o person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." 12 U.S. C.§2000d. "We have explained that discrimination that violates the Equal Protection Clause of the Fourteenth Amendment committed by an institution that accepts federal funds also constitutes a violation of Title VI." Gratz v. Bollinger, 539 U. S. 244, 276, n. 23 (2003). Although JUSTICE GORSUCH questions that proposition, no party asks us to reconsider it. We accordingly evaluate Harvard's admissions program under the standards of the Equal Protection Clause itself.
I'm not a legal expert and was wondering about the same question. Does the reasoning imply then that if Harvard wanted to forgo Pell Grants and other public funding a la Bob Jones University back in the day, they'd be permitted to practice AA?
I am not a lawyer but my understanding is it just means that as long as they do, they are evaluated as a public institution for the purposes of interpreting compliance with the Fourteen Amendment. I don’t know if it would be permissible to do explicit racial discrimination and call it AA, and then say “well we don’t take federal funding anymore so we’re good”. Interesting thought experiment, however.
I just finished reading the whole opinion, and yeah I think Justice Thomas would agree with you. He, in his concurrence, is super hostile to any sort of racial preference or protection. Holy Moly is this guy angry about racial preferences for anything. He started his concurrence with a history of slavery and proceeds through an excruciatingly detailed legal history of how we got rid of it. If he were here in the thread, he'd probably say "you are bound by your own predilections, as afforded to you by the Constitution, but if those predilections manifest harm in your result, you will find no quarter with me."
The supreme court is picking and choosing how they want to follow their textualism/originalism (as are the defenders of this opinion). There's no originalist argument for striking down AA. That makes them political activists (my original claim).
But if you want my personal opinion on AA, it's that it's a net good even though it's not perfect. We do need to deal with the fact that PoC have been discriminated against and that discrimination shows itself in generational poverty.
There is a mountain [1] of evidence that poverty has detrimental effects on education. We've spent decades forcing black people into poverty through red lining, racist loans, and even firebombing them when they became too prosperous [2]. So, of course, the offspring of these actions are going to have a much harder time succeeding.
Black americans have had higher rights of poverty for as long as we've tracked that statistic [3].
So should we "discriminate" against white people by making it easier for PoC to get admitted? Absolutely. The racism of the past has ripple effects that still haven't been fully addressed.
Now, to be frank, I'd rather that discrimination be based on income. Which would STILL result in black people getting a leg up (see poverty stats). But, you can't just say "well let's just be color blind now" and think everything is hunky dory.
I also support government reparations. Which could also be argued to be "discriminatory" since they'd primarily go to black people. Well, guess what, we discriminated based on race. The only way to heal that is helping the race that was discriminated against.
okay, what constitutional basis does the civil rights act have to protect you from discrimination by a restaurant that should not apply to a university?
> Whenever the Attorney General receives a complaint in writing signed by an individual to the effect that he is being deprived of or threatened with the loss of his right to the equal protection of the laws, on account of his race, color, religion, or national origin, by being denied equal utilization of any public facility which is owned, operated, or managed by or on behalf of any State or subdivision thereof, other than a public school or public college as defined in section 401 of title IV hereof, and the Attorney General believes the complaint is meritorious and certifies that the signer or signers of such complaint are unable, in his judgment, to initiate and maintain appropriate legal proceedings for relief and that the institution of an action will materially further the orderly progress of desegregation in public facilities, the Attorney General is authorized to institute for or in the name of the United States a civil action in any appropriate district court of the United States against such parties and for such relief as may be appropriate, and such court shall have and shall exercise jurisdiction of proceedings instituted pursuant to this section. The Attorney General may implead as defendants such additional parties as are or become necessary to the grant of effective relief hereunder.
Did you know that private schools can discriminate based on race today (In fact, this SC opinion reaffirms that)? The civil rights act explicitly only applied to public schools, not private ones.
What prevents the civil rights act from applying to a (private) university? The text of the bill. Could it? Yeah, if we amended it. Should it? Yup, we should push for that.
What gives the civil rights act its power? 9th amendment, 14th amendment, and article 1 of the constitution.
On its face affirmative action is pretty blatantly a violation of the 14th amendment:
Which to a trivial reading would come out as 'All persons [black, white, rainbow] shall have equal rights to attend [state funded school], and as such a right to a fair and impartial admissions process'.
Affirmative action adds the clause: "except those whose skin color we do not like today, those shall have to score higher on tests. Those whose skin color we do like today, those shall not have to score as high. Those whose skin color we do not care about can score the same as before."